ESSENTIAL FREIGHT SYSTEMS CONTRACT OF CARRIAGE
Effective Date Of March 21, 2006
1. As used in this contract, "carrier" means Essential Freight Systems and its authorized agents; shipper/consignor means the owner or tenderer of goods to be shipped; consignee means receiver/owner of goods; third party means actual or beneficial owner of the goods.
2. In tendering a shipment for carriage, shipper/consignor and consignee, and if applicable, the third party, agree to these conditions of contract, which no agent or employee of the parties may alter, and that the uniform bill of lading, shipper/consignor bill of lading, air bill or any other instrument of tender is non negotiable and has been prepared by the shipper/consignor or on its behalf. It is agreed that ample and sufficient time has been allowed to review and accept all of the terms and conditions contained herein, In no event is this contract to be construed as one of adhesion. If the shipper/consignor or any of its agents chooses to tender a shipment for carriage on other than the carriers normal bill of lading, it shall be agreed that all the terms and conditions of the carriers normal bill of lading and the contract terms contained therein shall remain in full force and effect as the only contract between the parties as if printed in their entirety thereon.
3. In tendering this shipment for carriage, the shipper/consignor warrants that the shipment is packaged to protect the enclosed goods and to ensure safe transportation with ordinary care in handling, and that each package is appropriately labeled and in good order for carriage. Contents of shipments and condition are unknown to the carrier and must be indicated by accurate and specific description on the uniform bill of lading, shipper/consignor bill of lading, air bill or any other instrument of tender.
4. In consideration of carrier's rate for transportation of any shipment, which rate, in part, is dependent upon the value of the shipment, the shipper/consignor and all other parties having an interest in the shipment agree that the limit of the carrier's liability shall be no more than $0.50 per pound per piece or in the case of hanging garments, $1.00 per garment, unless a higher value is declared on the uniform bill of lading, shipper/consignor bill of lading or air bill at time of receipt, and the applicable additional charges paid for such value, within 7days. Unless otherwise specifically stated elsewhere, the agreed additional charge for declared valuation shall be 1% of additional valuation requested at the time of tender, subject to minimum charge of $10.00.
5. Carrier shall be liable only for reasonable dispatch and shall not be liable for any special, consequential or incidental damages including, but not limited to, loss of profits, income, interest, utility or loss of market value, whether or not carrier had knowledge that such damage might be incurred. In no event shall the carrier be liable for more than the actual freight charges incurred for the shipment.
6. All shipments subject to minimum density of 10 pounds per cubic foot. Thus if dimensional or voluminous weight applies, Length x Width x Height = Cu. In., and Cu. In. divided by 1728 multiplied by 10 = Dimensional Weight. Charges will be calculated under the higher of actual or dimensional weight.
7. The shipper/consignor and consignee and, if applicable, the third party shall be liable jointly and severally for all unpaid charges payable on account of such shipment, including sums advanced or disbursed by the carrier on account of such shipment. In the event of the failure of (a) the shipper/consignor, on a prepaid shipment, or consignee, on a collect shipment or, if applicable, the third party, to pay any amount due the carrier within twenty one (21) days of the date of carrier's invoice, or (b) the shipper/consignor, on a collect shipment, or the consignee, on a prepaid shipment, to pay any amount due the carrier within twenty one (21) days of written notice by the carrier to the consignor/shipper or consignee or, if applicable, the third party, then (i) all discounts (where no discount is indicated on the invoice, it shall be agreed that the invoice was discounted 50%), allowances, commodity rates, brokerage agreements, incentives and/or any other rate reduction shall be forfeited, and (ii) the shipper/consignor, consignee, and, if applicable, the third party shall pay to the carrier interest at the rate of eighteen (18%) per cent per annum on all unpaid balances from the date payment is due until received, plus any sums expended for collection, including, but not limited to, court costs and attorneys' fees.
8. Carrier shall have the right to lien any and all shipments for past due invoices and any sums due carrier.
9. Shipments may be diverted to motor carrier or other carrier at the sole discretion of carrier.
10. As a condition precedent to recovery, all claims for loss or damage, must be filed in writing with the carrier within 15 days of delivery of shipment. Carrier will not be obligated to pay any claim so long as there are outstanding transportation charges. The shipper/consignor, consignee, or third party may not deduct or withhold payment of any amount for any claim or alleged claim from transportation charges. In the case of loss or damage discovered after receipt by the consignee, the carrier must receive the claim, without exception, within ten (10) days after delivery, and original packaging must remain available for inspection by carrier or its agent. Where loss or damage to a shipment would result in a claim for less than $100.00, no claim will be entertained and the carrier will not be liable. Any lawsuits against the carrier must be initiated within one year from the date of shipment.
11. Delivery will be made to the consignee at the destination and address specified on the face of the uniform bill of lading, shipper/consignor bill of lading, air bill or any other instrument of tender. Alternative and second delivery requests will result in additional charges. The shipper/consignor shall be primarily liable for all costs and expenses related to the shipment and for all costs and expenses incurred in returning the shipment to the shipper/consignor, or warehousing the shipment, pending the disposition given to the carrier by the shipper/consignor. If a shipment is rejected by the consignee, the carrier's responsibility shall be that of a warehouseman, at released value of $0.125 per pound. Notice of rejection of the shipment by the consignee shall be provided to the shipper, consignee, and third party, in writing by the carrier, with a request for disposition. If no response is received within 30 days, the carrier may sell the goods to satisfy its transportation lien, without further notice to the parties. In the event sale and or salvage of the merchandise on hand is not adequate to satisfy the transportation and or storage charges incurred, the shipper of the goods will be held liable and responsible for the balance due the carrier.
12. SHIPMENTS NOT ACCEPTABLE: Shipments of extraordinary value, namely: art work where the value exceeds $500.00 per shipment, bills of exchange, evidence of debt, furs, jewelry, other than costume, gems, cut or uncut, currency, bullion, precious metals, gold bullion, coined or un coined, deeds, human remains, cyanides, precipitates, sulphide, and any hazardous materials or substances.
13. A shipment with a declared value in excess of $25,000.00 will not be accepted unless carrier has agreed in writing at least 24 hours prior to pickup. In no event shall the signature of the pickup driver constitute the required written authorization. In the event a shipment is accepted with a declared value in excess of $25,000.00 without the required prior written authorization of carrier, carrier's liability for total loss shall be limited to a maximum of $25,000.00.
14. A shipper must enter the amount of any shipper's C.O.D. on the uniform bill of lading, shipper/consignor bill of lading, air bill or any other instrument of tender, subject to the fees and rules of the delivering carrier. Unless otherwise indicated, carrier will not insist on certified funds when collecting C.O.D. shipments.
15. Service is NOT GUARANTEED unless specifically requested at the time of pick up. Guaranteed Service surcharge shall be an amount equal to 50% of the otherwise applicable charge for the shipment. Remedy for recovery of non-performance in the case of guaranteed service shall be limited to the surcharge applied for the shipment.
16. Carrier shall be responsible only for reasonable dispatch. Carrier shall not be liable for loss, damage or delay or other results caused by (a) acts of God, public enemies, public authorities acting with actual or apparent authority, authority of law, quarantine, riot, strikes, civil commotions, or hazards or dangers incident to a state of war, (b) the nature of the shipment or any defect or special characteristic or inherent vice thereof, (c) violation by the shipper or consignee for any of these conditions of contract, (d) compliance or non-compliance with delivery or special instructions, (e) weather conditions, (f) delay of a mechanical or any other nature of aircraft, truck, bus, train or any other vehicle or equipment.
17. If any provision of this contract shall for any reason be held invalid, or unenforceable by the court, such invalidity or enforceability shall not effect any other provision hereof, but this contract shall be construed as if such invalid or unenforceable provision had never been contained herein.
In acceptance of carriers services of transportation, it is agreed that sufficient and ample time has been allowed to review and accept all terms and conditions contained herein, including but not limited to the payable terms and conditions as indicated. Therefore under no circumstances shall this contract be considered a contract of adhesion. It is understand that credit is a privilege and may be revoked or suspended at any time. It is further understood and agreed that failure to pay invoices in full within terms will result in forfeiture of any and all discounts allowed on the invoice, and possible lien on future shipments. Failure to remit payment in full within the agreed terms may also result in the above named company incurring all costs associated with collecting past due invoices. (I.E. attorney fees, court fees, ect.)