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Freight Forwarding Terms and Conditions

1. General Transportation Terms

(a) Defined terms:

(i) The term “Freight Forwarder” means Aries Freight Systems, LP operating under FF – 12082.

(ii) The Term “Materials” means Customer-owned or Customer-controlled goods.

(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 transporting freight.

(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 delivery point.

(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 Forwarder).

(vii) The term “Consignee” means the party, whether Customer or any third party to whom Customer is shipping, receiving the Materials tendered for shipment.

(viii) The term “Freight Forwarder Affiliates” means Aries Logistics, LP, who arranges for transportation of cargo by third party carriers under MC-550399 and Aries Freight Transport LLC, who performs services by transporting cargo on equipment owned or leased to Aries Freight Transport LLC under MC-387751. When service is provided by a Freight Forwarder Affiliate, the services are subject to the respective affiliate’s Terms and Conditions, which are available upon request.

(b) As a 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.

(d) Each 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.

(g) Prior 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 rates apply.

(b) Customer 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 expiration.

(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 terms:

(i) Rates are as agreed to by the parties.

(ii) Customer 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.

(iii) If 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.

(iv) If the 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.

(d) The weight of the pallets for a shipment shall be included in the gross weight of the shipment.

3. Liability Limitations

(a) Freight Forwarder shall be liable for loss or damage to Materials in accordance with the following:

(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.

(ii) With 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 Freight Forwarder.

(iii) With 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.

(b) Notwithstanding 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 Materials.

(d) In no event shall Freight Forwarder be liable for delay damages with regard to the Materials.

4. Customer Load and Consignee Unload

(a) Customer load

(i) Unless 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).

(b) Consignee unload

(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.

(ii) Consignee will not utilize Freight Forwarder’ equipment for any use other than the express purpose of unloading.

(iii) Consignee 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 charges.

(iv) Consignee accepts liability for any and all damage or loss occurring to Freight Forwarder’s equipment while it is in Consignee’s possession.

(v) Delivery receipts will be signed by the Consignee and available to the Freight Forwarder no more than 24 hours after unloading.

(vi) Consignee will notify Freight Forwarder within 24 hours of unloading, not including weekends and/or holidays, of any exceptions noted during the unloading process.

(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.

(ix) The 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) above.

(x) Any shipments received damaged shall be made available for Freight Forwarder inspection to determine cause of damage.

5. Claims

(a) In order for a claim for Materials lost or damaged during shipment to be valid, Customer shall give initial notice to Freight Forwarder of such a claim, and an opportunity for Freight Forwarder to investigate such claim, as follows:

(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.

(ii) Initial 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 Delivery.

(iii) Initial 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.

(iv) Materials 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 claimed damaged.

(b) Customer 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.

(c) Hazardous Materials

(i) Customer shall not submit any Materials for shipment that are required by the U.S. Department of Transportation or other applicable government agency to be placarded as a hazardous material or dangerous good (“Hazardous Materials”) except when such Hazardous Materials are fully and accurately described by the proper shipping name, are classified, packaged, marked and labeled/placarded, and in all respects in proper condition and packing for transport according to applicable international and national governmental regulations, including but not limited to the International Civil Aviation Organization (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air, the International Air Transport Association (IATA) Dangerous Goods Regulations and, where applicable, Title 49 of the Code of Federal Regulations.

(ii) Customer 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 Material shipments.

(iii) Unless expressly set forth in an applicable SOW, additional surcharges shall apply to Hazardous Material shipments.

(iv) If the 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.

6. Customs Brokerage

(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.

(b) At the 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.

(ii) On an 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 goods.

(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 presentation.

7. Force Majeure.

(a) Freight Forwarder 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.

8. Payment without offset.

(a) Customer and 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 charges due. In 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 freight charges.

9. Lien on Goods.

(a) Shipper hereby 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.

10. Venue and Jurisdiction.

(a) This agreement 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.

11. Entire Agreement.

(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.

12. Waiver.

(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.