(ii)The Term “Materials” means Customer-owned or Customer-controlled
(iii)The term “Pickup” means the point at which the Materials first
come under the care, custody, or control of Freight Forwarder or its agent in
(iv)The term “Delivery” means the point at which Freight Forwarder or
its agent releases or transfers care, custody, and control of the Materials
to Customer’s or Consignee’s at a receiving location or other designated
(v)The term “Agreement” refers to these Terms and Conditions.
(vi)The term “Customer” means the person or entity desiring to have
the goods transported, sending the goods, or otherwise liable as a Customer
under law. This definition includes the exporter, importer, sender, receiver,
owner, consignor, consignee, transferor, transferee, forwarder, broker and/or
any other agents or representatives of Customer (not to include Freight
term “Consignee” means the party, whether Customer or any third party to whom
Customer is shipping, receiving the Materials tendered for shipment.
convenience to Customer, invoices may be processed by Freight Forwarder
Affiliates and such administrative support in issuing invoices will not alter Freight
Forwarder’s role in connection with a particular shipment, as the act of
invoicing is a purely administrative function performed independent of
arranging for transportation services. Freight Forwarder and the Freight
Forwarder Affiliates are Texas business organizations, each of which (i) is
solely responsible for its own debts and obligations, and (ii) is not
responsible for the debts and obligations of any other entity unless expressly
agreed in writing. Customer agrees that Freight Forwarder, Aries Logistics, LP,
and Aries Freight Transport, LLC shall not be liable, and Customer will not
attempt to hold them liable, for the conduct of their affiliates or third
parties. Similarly, Customer agrees that Freight Forwarder, Aries Logistics,
LP, and Aries Freight Transport, LLC are not engaged in a partnership, joint
venture, joint enterprise, or similar venture.
(c)Notwithstanding that non-Freight Forwarder bills of lading may be
used from time to time in connection with shipments, including but not limited
to any bills of lading issued by Customer or any asset-based carrier, terms
and conditions included on any other such bills of lading identifying shipments
made hereunder, including but not limited to any terms that would increase
Freight Forwarder’s liability beyond the liability limitations set forth
herein, shall not apply and shall be deemed void and of no effect.
and every shipment tendered to or transported by Freight Forwarder on or after
the Effective Date shall be subject to the terms and conditions of this
Agreement, unless expressly waived in a signed, written agreement. This
Agreement does not obligate Customer to offer any shipments to Freight
Forwarder, nor does this Agreement obligate Freight Forwarder to accept for
transportation every or any shipment offered by Customer to Freight Forwarder.
(e)Upon Customer’s request, Freight Forwarder shall provide Customer
with standard shipment tracking information by electronic means (Electronic
Data Interchange) via Freight Forwarder' tracking and tracing system.
(f)If instructions by Customer are not received within seventy-two
(72) hours of notification of delivery discrepancies by Freight Forwarder,
Freight Forwarder may at its sole election return the shipment at Customer’s
sole cost to Customer’s original shipping point for such shipment or store the
Materials at Customer’s sole cost pending Customer instructions. Materials
stored in a Freight Forwarder warehouse are subject to the Warehouse &
Related Services Terms and Conditions, which are available upon request.
to tendering any shipment, Customer shall (i) ensure that the Materials are
properly packed for shipment as may be necessary to withstand the loss or
damage associated with the ordinary risks of transportation; (ii) properly
describe the Materials in Freight Forwarder’s consignment note and other
documents or labels, including electronically provided information; (iii)
ensure that the shipment is properly labeled and that the label or labels are
securely attached to the shipment in a clearly seen prominent location on the
outer surface of the shipment; (iv) declare the proper weight of the shipment;
and (v) ensure that the Consignee’s full proper address has been entered on
Freight Forwarder’s consignment note and other documents and labels.
2.Transportation Rates and Payment
(a)Otherwise expressly provided for in writing, rates include one pickup
and one delivery service for each shipment at all points within the commercial
zone of the cities, town, villages, and other points from and to which the
and Freight Forwarder recognize that certain events or circumstances may result
in significant changes in the capacity or demand for transportation
services, which may in turn lead to significant changes to the market rates for such services. In
the event that a significant change in the market rates occurs with respect to any of the Services, either Customer or Freight Forwarder
may propose adjustments to the rates and charges no more frequently than once every month. If the parties
are unable to agree upon an acceptable rate for each lane included in the
proposed adjustment within thirty (30) days following the proposed
adjustment, then either party may terminate the applicable statement of work
with respect to the specific lanes for which no agreement was reached upon thirty
(30) days’ notice. If either party gives notice to the other for this reason,
the affected party will have the option of preventing the termination from
taking effect with respect to the specific lanes for which no agreement was
reached by accepting the new rates in writing within five
(5) business days of its receipt of the notice of termination.
If the termination takes effect, the party providing notice of termination
shall be discharged of its duty only with respect to those terminated lanes for
the remainder of the term, except with respect to those certain obligations
that were incurred prior to termination in whole or in part that survive
(c)Freight Forwarder may, but is not obligated to, ship the Materials
“COD” and accept payment for the Materials and/or transportation charges on Customer’s
behalf from the Consignee. Freight Forwarder shall only be obligated to ship
the Materials COD if it agrees to do so in writing prior to Customer’s tender
of Materials for shipment. All COD shipments shall be subject to the following
(i)Rates are as agreed to by the parties.
agrees to be jointly and severally responsible for all charges related to the services,
including COD charges and freight charges for refused COD shipments or
shipments where Consignee cannot or refuses to make COD payment.
Customer requests “Secured Payment”, Freight Forwarder shall collect payment in
the form of cashier’s check, official check or money order. “Unsecured Payment”
means any form of payment, including but not limited to Secured Payment,
personal check, certified check, money order or company check. Freight
Forwarder is under no obligation to accept Cash, traveler’s checks, “COM”
checks, credit cards or counter checks as COD payment. Checks and money orders
for the COD amount will be collected at Customer’s sole risk, including, but
not limited to, all risk of nonpayment, fraud and forgery. Freight Forwarder
has no payment liability with respect to any such instrument.
COD Materials are refused by Consignee or Customer cannot or refuses to make
COD payment, Freight Forwarder may at its sole election return the shipment at
Customer’s sole cost to Customer’s original shipping point for such shipment or
store the Materials at Customer’s sole cost pending Customer instructions.
weight of the pallets for a shipment shall be included in the gross weight of
(i)With respect to Air shipments: For shipments
transported by air, Freight Forwarder’s liability shall be limited to $.50 per pound
domestic and $9.07 per pound international, up to $500,000 per shipment.
respect to Ocean shipments: For shipments transported
by vessel that are arranged by Freight Forwarder as an NVOCC, Freight Forwarder
shall be liable for loss or damage to Materials subject to and in accordance
with the International Convention for the Unification of Certain Rules Relating
to Bills of Lading, August 25, 1924 (the “Hague Rules”); the Protocol to Amend
the Hague Rules, February 23, 1968 (the “Hague-Visby Rules”); or the United
States Carriage of Goods by Sea Act, 46 U.S.C. App. §§ 1300 et seq. (“COGSA”)
as applicable. Freight Forwarder shall be liable for loss or damage to
Materials to the extent such loss or damage is caused by the negligence or
willful misconduct of Freight Forwarder and Freight Forwarder’s liability shall
not exceed the lower of $500 per package or the actual value of the
items lost or damaged in transit, whichever is less and only up to $1,000,000
per the entire shipment,unless Customer submits a written request for a higher
Release Value, pays an additional charge based on the increased Release Value,
and obtains written confirmation of the higher Release Value from an Officer of
respect to Rail Transportation: For shipments
transported by railroad, Freight Forwarder’s liability shall be limited to $.50 per pound, up
to $1,000,000 per shipment.
(iii) With respect to Ground Transportation: Freight
Forwarder’s liability shall not exceed $.50
per pound, up to $500,000 per shipment unless Customer submits a
written request for a higher Release Value, pays an additional charge based on
the increased Release Value, and obtains written confirmation of the higher
Release Value from an Officer of Freight Forwarder.
subsection (a) above, Freight Forwarder shall not be liable in any event for:
(1) loss of weight of any Materials; (2) loss or damage to Materials resulting
from a Force Majeure Event, improper packing, insufficient cooperage, breakage,
boxing, crating, wear and tear, or inherent qualities of the Materials; (3)
loss of Materials by leakage or through failure to detect same; or (4)
concealed loss or damage.
(c)In no event shall Freight Forwarder’s liability for loss or damage
to Materials exceed the actual replacement value of such lost or damaged
event shall Freight Forwarder be liable for delay damages with regard to the
Load and Consignee Unload
otherwise agreed to in writing, all shipments shall be loaded at the Customer’s
facility by the Customer and unloaded at the Consignee’s facility by the
Consignee. Inadvertent omission of the “SLC” notation shall not result in a
presumption of Freight Forwarder liability for shortage or damage (in the
absence of upset or accident).
(i)Freight Forwarder may agree to spot or drop trailers at
Consignee’s place of business for the purpose of completing the unloading
process. Unless otherwise set forth in an applicable SOW, Consignee shall have
two (2) business days to unload a drop trailer before normal detention charges
will apply as set forth on Freight Forwarder’s rate sheets.
will not utilize Freight Forwarder’ equipment for any use other than the
express purpose of unloading.
will notify Freight Forwarder at least twenty-four (24) hours prior to the time
that equipment will be ready for pickup by Freight Forwarder. Equipment not
available at the designated pickup time shall be subject to normal detention
accepts liability for any and all damage or loss occurring to Freight
Forwarder’s equipment while it is in Consignee’s possession.
receipts will be signed by the Consignee and available to the Freight Forwarder
no more than 24 hours after unloading.
(vii)Freight Forwarder shall not be liable for uncontrollable
palletized orders, picked up with shrink-wrap intact or Customer Load and Count
orders that have been properly reported to the Customer at first unloading.
(viii)shipments tendered to the Consignee to be unloaded at their
convenience are to be secured by Consignee in a manner to prevent theft, loss
or damage. Freight Forwarder will not be held responsible for Material loss or
damage while in the possession of the Consignee.
Consignee will accept liability for any loss or damage to the Material that has
not been properly reported to Freight Forwarder as described in item (vi)
shipments received damaged shall be made available for Freight Forwarder
inspection to determine cause of damage.
(i)Initial notification of visible damage to the Materials shall be
made in writing on the Bill-of-Lading by Customer or the Consignee at the time
of Delivery. A signed receipt absent such notation shall be proof of apparent
good order and condition at Delivery.
notification of concealed loss or damage to the Materials shall be made in
writing by the Customer or consignee within twenty-four (24) hours of
notification must contain sufficient information to identify the Materials and shipment
as to which the claim is being made, the basis of the claim, and the amount of
the claim. Claims not made with all required information may be denied by
Freight Forwarder even if the claim otherwise is made timely.
claimed to be damaged shall not be moved, unpacked or otherwise altered from
the state in which they were discovered damaged until Freight Forwarder and its
representatives shall be given a reasonable opportunity, but in no event less
than five (5) business days after notice by Customer, to inspect the Materials
shall file a formal written claim for loss or damage to the Materials within
sixty (60) days of Delivery, or in the case of an entire shipment loss or
non-Delivery, ninety (90) days after the expected date of Delivery. No action
may be maintained by Customer against Freight Forwarder for loss or damage to
the Materials unless timely written initial notification and formal written
claim have been given as provided herein. Claims for loss, damage, or delay to
cargo pursuant to ground transportation shall be filed according to 49 C.F.R. §
370. All cargo claims filed with Freight Forwarder are waived if not filed in
writing within 9 months from the date of delivery or a reasonable time at which
delivery should have been accomplished. All cargo claims are waived if a civil
suit is not filed within 2 years from the date the Freight Forwarder gives a
person written notice that Freight Forwarder has denied any part of the claim
specified in the notice. All other claims must be brought within 2 years from
the date the claim accrues. ALL CLAIMS FOR WHICH PROPER AND TIMELY NOTICE IS
NOT GIVEN ARE DEEMED AUTOMATICALLY WAIVED.
hereby agrees to fully indemnify, defend and hold harmless Freight Forwarder,
its affiliates and subcontractors, and their respective officers, directors and
employees from and against any and all claims, liabilities, fines, penalties,
damages, costs and expenses (including, but not limited to, attorney’s fees and
court costs) arising out of or related to inaccurate or incomplete information
provided to Freight Forwarder by Customer in connection with any Hazardous
expressly set forth in an applicable SOW, additional surcharges shall apply to
Hazardous Material shipments.
Consignee refuses delivery of Hazardous Materials, Freight Forwarder, shall at
Customer’s sole expense, return the Hazardous Materials to Customer. If Customer
also refuses delivery, then Freight Forwarder shall, at Customer’s sole
expense, (i) deliver the Hazardous Materials as per Customer’s written
instructions; or (ii) if no written instructions are received within 24 hours
of Customer’s refusal, destroy or otherwise dispose of the Hazardous Materials.
(a)In the event that the Services to be performed under an SOW
include customs brokerage, or import and/or export services, Freight Forwarder’
authorization to act on behalf of Customer and the scope of that authorization
shall be subject to the terms and conditions of the applicable, duly executed
Power of Attorney.
request of Customer, all US Customs charges, duties, taxes, and fees will be
paid to customs on behalf of Customer by Freight Forwarder. Customer will be
charged a disbursement fee of 3% of the amount advanced to US Customs. The
disbursement fee will not apply to other charges such as transportation related
charges. The amount advanced and the disbursement fee will be invoiced
separately from the transportation related charges. Customer will reimburse
Freight Forwarder within thirty (30) days following the date of such invoice
for all monies advanced to US Customs, plus the additional 3% disbursement fee.
Notwithstanding the foregoing, Freight Forwarder shall not be obligated to
advance monies to US Customs and may discontinue this service at any time upon
thirty (30) days’ notice to Customer.
(c)Duty to Furnish Information.
(i)On an import, at a reasonable time prior to entering of the goods
for US Customs or applicable government agency, Customer shall furnish to
Freight Forwarder invoices in proper form and other documents necessary or
useful in the preparation of the US Customs entry and, also, such further
information as may be sufficient to establish, inter alia, the dutiable
value, the classification, the country of origin, the genuineness of the
merchandise and any mark or symbol associated with it, Customer’s right to
import and/or distribute the merchandise, and the merchandise’s admissibility,
pursuant to applicable law or regulation. If Customer fails in a timely manner
to furnish such information or documents, in whole or in part, as may be
required to complete US Customs entry or comply with applicable laws or
regulations, or if the information or documents furnished are inaccurate or
incomplete, Freight Forwarder shall be obligated only to use its reasonable
judgment in connection with the shipment and in no instance shall be charged
with knowledge by Customer of the true circumstances to which such inaccurate,
incomplete, or omitted information or document pertains. Where a bond is
required by an applicable government agency to be given for the production of
any document or the performance of any act, Customer shall be deemed bound by
the terms of the bond notwithstanding the fact that the bond has been executed
by Freight Forwarder as principal, it being understood that Freight Forwarder
entered into such undertaking at the instance and on behalf of Customer, and Customer shall indemnify and hold Freight
Forwarder harmless for the consequences of any breach of the terms of the bond.
export, at a reasonable time prior to the exportation of the shipment, Customer
shall furnish to Freight Forwarder the commercial invoice in proper form and
number, a proper consular declaration, weights, measures, values and other
information in the language of and as may be required by the laws and
regulations of the both the countries of origination and destination of the
(iii)On an export or import, Freight Forwarder shall not in any way be
responsible or liable for increased duty, penalty, fine or expense unless
caused by the gross negligence or willful misconduct of Freight Forwarder, in
which event its liability to Customer shall be limited to $50 per entry. Customer
shall be bound by and warrant the accuracy of all invoices, documents and
information furnished to Freight Forwarder by Customer or its agent for export,
entry or other purposes and Customer
agrees to indemnify and hold harmless Freight Forwarder against any increased
duty, penalty, fine, or expense including attorneys’ fees, resulting from any
inaccuracy, incomplete statement, omission or any failure to make timely
shall not be liable for failure to perform any of its obligations during any
time in which such performance is prevented by fire, flood, hurricane, storm,
weather-related incidents, or other natural disaster, war, embargo, riot, civil
disobedience, or the intervention of any government authority, or any other
cause outside of the reasonable control of Freight Forwarder.
Consignee must pay all freight charges when due without offset for any cause.
All claims for loss or damage shall be governed by these terms and conditions and
neither Customer nor Consignee shall deprive Freight Forwarder of proper cargo
insurance adjustment by unilateral deduction of claims from payment of freight
the event that Customer
“short pays” freight charges or deducts charges from freight bills without
Freight Forwarder’s authorization to do so in writing, prior to the deduction,
Customer waives its right to any contested cargo claim that is set-off against
grants Company a lien on the goods tendered to Company by Shipper or consignor
(including proceeds of such goods
tendered to the Company), which shall survive delivery, to secure payment of
all charges owed by Shipper to Company, including, but not limited to, freight,
demurrage, detention, damages, loss, charges, expenses, collection costs, and
any other sums (including costs, customs fees, attorney fees, and other fees
for recovery of the sums) chargeable to Company or Shipper in connection with
such goods or the transportation of such goods, regardless of whether the
charges relate to goods that are presently in the possession of Company or
goods that are not presently in the possession of Company, including both prior
and subsequent shipments. Company shall have the right to sell the goods by
public auction or private sale in order to enforce the lien, upon giving the
notice required by the Texas UCC then in effect at the time. If on sale of the
goods, the proceeds are insufficient to cover the amount owed, Company shall be
entitled to recover the balance from Shipper. Shipper agrees that any sale by
Company shall be commercially reasonable, and Shipper waives all claims that a
sale of goods is not commercially reasonable. Shipper further agrees to execute
any other document necessary for Company to perfect its lien.
shall be construed to have been entered in Harris County, Texas and performable
in Harris County, Texas. All parties consent to the jurisdiction of Texas and
to venue in Harris County, Texas. It is expressly acknowledged and agreed that
any suit related to Company’s services or these terms and conditions shall be
filed in the appropriate state or federal court in Harris County, Texas.
(a)These terms and conditions
constitute the entire contract between Company and Shipper and only an officer
of Company has authority to alter, modify or waive any provision herein,
excepting that the rate stated may be modified by Company to conform to the
services Company provides.
(a)To the extent that
terms and conditions herein are inconsistent with the Carmack Amendment, 49
U.S.C. 14706 or Part (b), Subtitle IV, of Title 49 U.S.C. (ICC Termination
Act of 1995), the parties expressly waive such rights and remedies that they
may have under such laws.