Soren Transport, Inc.’s

Terms and Conditions of Brokerage

 

 

1. Parties. The term “Customer” means the person or entity desiring to have the goods transported, sending the goods, or otherwise liable as a shipper 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 Broker). It is the responsibility of all such parties to provide notice and copies of these Terms and Conditions of Brokerage (“Terms and Conditions”) to each other.

 

The term “Broker” means Soren Transport, Inc. operating under MC 1181651, Broker is not acting, and does not act, as either a motor carrier or a common carrier within the meaning of USC Title 49. Customer and its agents expressly agree that they will not under any circumstances attempt to hold Broker liable in the capacity of a motor carrier. Broker is a freight broker as defined by 49 C.F.R. Section 371.2(a) Customer or third party’s insertion of Broker as the carrier of record in any bill of lading, delivery order, or other document will not alter or affect Broker’s status as a freight Broker. The carrier(s) actually transporting the freight at issue shall be solely responsible in the capacity of a motor carrier; Customer and its agents shall not file claims or suit against Broker for loss, damage, or delay to cargo. The term “Carrier” shall refer solely to the motor carrier providing the actual transport.

 

2. General. These Terms and Conditions are applicable to the services performed by Broker undertaken on the Customer's behalf. These Terms and Conditions supersede all previous conditions of transportation and other prior statements concerning the rates and conditions of Broker's services. These Terms and Conditions control in the event of any discrepancy or conflict between these Terms and Conditions and those of any Customer, unless changes have been made by obtaining prior written approval by an Officer of Broker. Broker reserves the right from time to time to modify, amend or supplement these Terms and Conditions without notice including by posting through an online service provider. Copies of Broker's most recent terms and conditions are available upon request. Broker’s terms and conditions in effect on the date of shipment shall apply. In the event that Broker and the Customer have entered into a signed, written contract containing terms and conditions different than those set forth in these Terms and Conditions, the signed, written contract will control to the extent that such terms conflict with these Terms and Conditions. These Terms and Conditions apply to Broker, not the Carrier actually providing the transportation services. In the event one of the Broker’s affiliates actually transports a load, such transportation shall be subject to the affiliate’s terms and conditions, which are available upon request.

 

3. Service. Broker will arrange for transportation of Customer’s freight pursuant to these Terms and Conditions. Broker’s responsibility will be limited to arranging for, but not actually performing, transportation of Customer’s freight. Broker does not exercise or retain any control or supervision over any carrier, its operations, employees, or contractors. Broker reserves the right, in its sole discretion, to refuse any shipment at any time. The relationship between Broker and Customer is that of one independent contractor with another, and nothing herein is intended to create a joint venture, partnership, agency, or any employment relationship. Broker reserves the right to refer shipments to, and Customer approves such use of, Broker’s affiliates to provide transportation services for any shipment.

 

4. Rates and Fees. Quotes are based on information provided by the Customer. Unless indicated, the price excludes charges for detention time, per diem and additional stops. Customer will be liable for all additional charges incurred relating to the transportation of Customer’s freight. The quoted rate depends on the weight, dimension and released value of the property described. Any changes to the actual released value, dimension, description or weight of the load may result in revisions to the quoted price.

 

5. Payments. Broker or Broker’s affiliate will invoice Customer for Broker’s services in accordance with the rates, charges and provisions negotiated and agreed to between Customer and Broker. Customer agrees to pay Broker’s invoice within 15 days of the invoice date without deduction or setoff. Late payments are subject to a charge for late payment of 1.5% accruing monthly, or the maximum allowable by law, whichever is lower. As a convenience to Customer, invoices may be processed by Broker’s affiliated entity and such administrative support in issuing invoices will not alter Broker’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. In the event of a loss, Customer’s claim and any remedies will be directed to, and the sole responsibility of, the actual Carrier performing transportation services for the particular shipment at issue, to the extent of any claim for loss, damage or delay.

 

6. Third Party Billing & Freight Charge Liability. A shipment in which charges are to be paid by a party other than the Customer, will be accepted provided recourse against the Customer, shipper, consignor, and/or consignee is preserved, regardless of any other representation on the Bill of Lading or other shipping document (including, but not limited to, Section 7 and/or prepaid designations). The Customer guarantees to pay the charges if the third party fails to do so in the time allotted under the applicable credit regulations.

 

7. Liability for Loss, Damage, or Delay. Broker will assist with processing of claims on behalf of its Customers. Broker shall not be liable for the conduct of motor carriers hired by Broker. Broker shall not be liable for loss or damage arising from subcontracting by the motor carrier hired by Broker, nor shall Broker be liable for loss or damage related to fraud perpetrated on or by the motor carrier hired by Broker. BROKER is not liable for loss or damage to cargo, UNLESS the loss or damage is caused by the SOLE negligence OR FAULT of BROKER. THIS RELEASE SHALL INCLUDE SITUATIONS WHERE BROKER IS CONCURRENTLY NEGLIGENT OR AT FAULT. In no event WILL BROKER be liable for DAMAGES ARISING FROM DELAY OR any special, incidental or consequential damages, including damages relating to loss of profits, whether or not such damages were reasonably foreseeable. BROKER shall be entitled to all limitations of liability, rights, and protections available to the carrier, including, but not limited to the terms in the bill of lading, terms and conditions, rules tariff, and other documents. bROKER WILL not BE liable for PERsonal injury or death or property damage ARISING FROM, RELATED TO, OR CONNECTED WITH THE CONDUCT OF the motor carrier.

 

BROKER’S LIABILITY SHALL NOT EXCEED $100,000 PER SHIPMENT TRANSPORTED BY A THIRD-PARTY MOTOR CARRIER 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 BROKER. IN THE event broker is liable for loss or damage to cargo, broker’s liability shall be limited to the amount of actual insurance coverage provided to broker by broker’s insurer, IF ANY; in the event no insurance coverage is provided to broker, broker’s liability shall be limited to $5,000.

 

8. Force Majeure. Broker will not be liable for failure to perform any of its obligations under these Terms and Conditions during any time in which such performance is prevented by circumstances beyond Broker’s control including but not limited to an act of God, fire, flood, or other natural disaster, war, embargo, riot, strike, lock-out, labor disturbance, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of Broker.

 

9. Disclaimer of Warranties. Except as expressly provided in these Terms and Conditions, Broker 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 the website. Broker cannot guarantee delivery by any specific time or date.

 

10. Notice of Claims.

 

1. Freight Claims. Customer must give Broker written notice of any claims for cargo loss or damage within 180 days from the date of such loss, shortage or damage, which for purposes of these Terms and Conditions will be the delivery date or, in the event of non-delivery, the scheduled delivery date. Customer must file any civil action against Broker in a court of law not later than 2 years from the date of delivery or, if delivery was not completed, the expected date of delivery.

 

1. Payment of Claims by Broker. If payment of claim is made by Broker to Customer, Customer automatically assigns its rights and interest in the claim to Broker, and agrees to execute any documents that may be necessary in connection with such assignment. All damage claims will be handled directly with the Carrier or its insurance representatives. Notwithstanding the foregoing, this provision does not obligate Broker to pay any claim.

 

1. All Other Claims. Customer shall notify Broker of all known material details within 91 days of receiving notice of any facts giving rise to a claim other than cargo loss or damage claims, or else such claims are waived. Customer shall update Broker promptly thereafter as more information becomes available. Civil action, or arbitration, if any, must be commenced within 2 years from the date of the event giving rise to the claim.

 

11. Customer Responsibilities.

 

1. Customer must properly mark, pack and label cargo so it will safely endure ordinary handling in transit. By tendering a shipment to the Carrier(s), Customer certifies that the shipment is sufficiently packaged to withstand the normal hazards of truck transportation.

 

1. Customer shall be responsible to Broker for timely and accurate delivery instructions and description of the cargo, including any high value, special value, special handling (including tarping or strapping instructions) or security requirements, for any shipment. Any article susceptible to damage by ordinary handling must be adequately protected and packaged and marked in such a way as to alert the Carrier(s) of the possibility of damage from ordinary handling and must bear appropriate labels.

 

1. Customer shall provide the Carrier(s) with access to the facilities necessary to load or unload the tendered shipments. Customer is solely responsible for maintaining the loading and unloading facilities in a good and safe condition, and in compliance with all applicable laws, codes and regulations. Customer hereby waives and releases BROKER from any liability for any loss or damage to Customer's facilities or to Customer's personal property located on such facilities. Broker will not be responsible for stolen, lost, or damaged goods, containers, chassis, or other equipment after such items have been delivered. Customer will reimburse Broker for any costs Broker pays or incurs with regard to theft, loss, or other damage to goods, containers, chassis, or other equipment occurring after delivery of the shipment.

 

1. Customer agrees that it is solely responsible for providing the weight and dimensions of any shipment and guarantees that the weights and dimensions given to Broker, and its employees, will be true and accurate and accepts all responsibility and liability for any actions and operations performed based on the weights and dimensions provided by Broker or Broker’s client.

 

1. Customer recognizes that Broker has spent substantial time, money and resources developing a reputation in the freight brokerage industry and developing business relationships with carriers through which it arranges transportation of freight of Customer and others and that Broker is providing a valuable service to Customer in arranging for transportation of Customer’s freight. Therefore, as part of the consideration for Broker arranging for the transportation of Customer’s freight, Customer agrees that  for a period of twelve (12) months following the date of any load of freight for Customer that Broker arranged to be transported by a particular carrier, that Customer will not offer, tender or refer freight directly to that particular carrier, unless during the twelve (12) month period immediately preceding the first load of freight of Customer that Broker arranged to be hauled by that particular carrier, such carrier had hauled sufficient freight directly for Customer (and not arranged through  Broker or another broker or other party) to generate at least $10,000 of freight charges. Should Customer violate the provisions of this section, Customer agrees to  pay as liquidated damages, an amount equal to fifteen-percent (15%) of the  gross amount that Customer has agreed to pay such carrier for transporting freight for Customer for a period of twelve (12) months following the date of the last load of Customer’s freight that Broker arranged to be transported by that particular carrier.

 

1. Customer agrees that it shall protect and keep confidential any and all non-public, confidential, or proprietary information of Broker including, but not limited to, the identity of Broker carriers, carrier lists, freight and brokerage rates, pricing, freight volume requirements, or the like and that Customer shall not disclose the same, without the prior written approval of Broker.

 

12. Canceled Loads. If Customer requests that Broker arranges for a carrier to transport a load of freight and such load is subsequently canceled or delayed beyond the requested pick-up time and the carrier arranged by has sent a truck or  equipment or has otherwise incurred expenses in connection with such load, Customer agrees to pay to the amount of costs and expenses incurred by  such carrier, plus ten-percent (10%) of such amount. Customer acknowledges that Broker will pass along to such carrier ninety-percent (90%) of the amount paid by Customer to Broker.

 

13. Shipments not Accepted. Customer will not tender shipments for transportation of explosives, shipments requiring “protective security service or armed guard surveillance,” human remains, precious metals, currency, object d’art, collection, antiques or precious stones, jewelry, manufactured tobacco products, ammunition, or any items of unusual value.

 

14. HAZARDOUS MATERIALS. Customer shall comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR §172.800, §173, and §397 et seq. to the extent that any shipments constitute hazardous materials. Customer is obligated to inform Broker immediately if any such shipments constitute hazardous materials. Any hazardous materials tendered and accepted for transportation must be fully and accurately described by the proper shipping name, classified, packaged, marked and labeled/placarded, and in all respects tendered 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. Customer agrees to indemnify, defend, and hold harmless BROKER and its officers, employees, agents and insurers, against all claims, liabilities, losses, fines, reasonable attoRNey fees and other expenses arising out of or related to the release of any hazardous material, including without limitation, FInes or expenses related to the removal or treatment of hazardous material or other remedial ACTION PERTAINING to the hazardous material under federal or state law, if Customer fails to provide advanced notice prior to tendering hazardous material to BROKER; the contact, exposure or release resulted from the improper packaging or loading or other acts or omissions of the Customer, its employees or agents; AND the contact, exposure or release occurred subsequent to the transport of the hazardous material by BROKER or the Carriers.

 

15. Default. Both Broker and Customer will discuss any perceived deficiency in performance and will promptly endeavor to resolve all disputes. However, if either party materially fails to perform its duties under these Terms and Conditions, the party claiming default may terminate its duties upon written notice to the other party. Customer shall be responsible to pay Broker for any services performed prior to the termination of duties and for shipments not yet completed and/or not yet invoiced to Customer.

 

16. Attorneys’ Fees. In the event any litigation arises from breach of these Terms and Conditions or to collect for the services provided under these Terms and Conditions, Broker will be entitled to recover all reasonable costs incurred including court costs, attorney fees, and all other related expenses incurred in such litigation.

 

17. Severability. If any provision of these Terms and Conditions is invalid for any reason whatsoever, these Terms and Conditions will be void only as to such provision, and the remaining terms and conditions will remain binding between the parties. Any provision voided will be replaced with provisions which are as close to Broker and Customer’s original intent as permitted under applicable law.

 

18. Non-Waiver. The failure or refusal of either party to insist upon the strict performance of any provision of these Terms and Conditions or to exercise any right in any one or more instances or circumstances will not be construed as a waiver or relinquishment of such provision or right, nor will such failure or refusal be deemed a customary practice contrary to such provision or right.

 

19. Venue and Jurisdiction. These Terms and Conditions shall be subject to and governed by the laws of the State of Texas, without regard to choice-of-law principles and irrespective of the fact that one or more of the parties may be or may become a resident of a different state. The parties agree that any and all claims or disputes arising out of or under these Terms and Conditions shall be filed in the appropriate county, state and federal courts located within Harris County, Texas. Customer hereby waives any claims or objections to personal jurisdiction and/or that such courts will be improper or inconvenient forums.

 

Soren Transport, Inc.’s

Terms and Conditions of Warehouse

 

WHEREAS Soren Transport Inc. (“Company”) operates warehouse space or contracts with warehouse providers; and WHEREAS Customer, to satisfy some of its logistics needs, desires to utilize that warehouse space. NOW THEREFORE, intending to be legally bound, Company and Customer agree the following Warehouse Terms and Conditions as follows will apply to warehouse services provided or sold by Company:

 

 

1. Definitions.
   • “Customer” shall refer to the person or entity tendering the goods, the person or entity holding title to the goods, and the owner of the goods and their employees, contractors, invitees, and agents.
   • “Warehouse” shall refer to any warehouse or storage facility owned, leased by or operated by Company or Company’s vendors where Customer’s goods are stored pursuant to an agreement between Customer and Company.

 

2. Application. These Terms and Conditions shall apply to all of Customer’s goods tendered to Company and stored at Company’s Warehouses and any other similar warehousing services. In the event of a conflict between any term of these Terms and Conditions and any other document, all other terms pertaining to storage of Customer’s goods at Company’s Warehouses and the shall be superseded by these Terms and Conditions. The terms in these Terms and Conditions can only be superseded upon authorization by an Officer of Company. If Customer is not the owner of the goods or does not have title to the goods, Customer agrees that it acts as the owner’s and title holder’s agent and also agrees to these Terms and Conditions on behalf of the owner and title holder of the goods and other interested parties. These Terms and Conditions, price quotes and related warehouse receipts for each tender of Customer’s goods pursuant to same shall constitute a “Warehouse Receipt” for the purposes of Article 7 of the Uniform Commercial Code as enacted by the State of Texas. These Terms and Conditions are not intended to be and shall in no event be construed as a contract-for-carriage. Company shall not be deemed to be a motor carrier of any type nor a freight forwarder as defined under 49 USC § 13102 for services provided under these Terms and Conditions. Any services provided by third party motor carriers will be subject to the Brokerage Services Terms and Conditions herein.

 

3. Shipment of Goods to Warehouse.
   • Customer shall identify Customer as the named consignee on all goods shipped to the Warehouse. Customer shall not ship goods to or from the Warehouse naming Company as the consignee on a bill of lading or other shipment document. Company has no beneficial title or interest in Customer’s goods, and Customer agrees to notify motor carriers that Company is providing warehousing services and to notify motor carriers of the actual consignee.
   • If goods which name Company as consignee are inadvertently shipped and accepted, Customer shall immediately notify Company and the motor carrier in writing that Company is the “in care of party” only and has no beneficial title or interest in Customer’s goods.
   • Customer shall not cause, or allow, Company to be named, labeled, or indicated as “Shipper”, “Consignee” or other like title under any agreement, without Company’s prior written consent.
   • If goods which name Company as “Shipper”, “Consignee” or other like title are inadvertently shipped and accepted, Customer shall immediately notify Company and the motor carrier in writing that Company is the “in care party” only and has no beneficial title or interest in Customer’s goods.
   • Customer shall indemnify, Defend and hold harmless COMPANY; ITS AFfiliates (“Affiliates” and “Affiliate” is defined as another organization or partnership with common ownership, management, facilities, employees, equipment or interests) ITS OTHER customers; and Company’s, Its AFFILIATES’, and its OTHER customers’ Trustees, officers, directors, employees, CONTRACTORS, and agents of the ABOVE-MENTIONED entities (COMPANY Group) from any and all claims for unpaid transportation charges related to Customer’s goods, of any kind whatsoever and to whomever owed, including detention, demurrage, and all other charges, without regard to whether COMPANY was named consignee or whether COMPANY knew or should have known it was the named consignee on a bill of lading or other shipping document. All goods shall be shipped freight prepaid by and arranged by Customer. Company shall not be liable for freight charges with respect to any transaction with Customer. In no event shall these Terms and Conditions, price quotes and/or related warehouse receipts be considered a contract of carriage
   • In the event that Company is alleged to owe freight charges with respect to any transaction involving Customer, Customer shall indemnify, Defend and hold harmless COMPANY; ITS AFfiliates; and COMPANY GROUPS from any and all claims for unpaid transportation charges related to Customer’s goods, of any kind whatsoever and to whomever owed, including, BUT NOT LIMITED TO, FREIGHT CHARGES. tHIS PROVISION SHALL TAKE EFFECT WITHOUT REGARD TO WHETHER COMPANY OR CUSTOMER KNEW OR REASONABLY SHOULD HAVE KNOWN THAT COMPANY WOULD BE PRESENTED WITH SUCH CHARGES.

 

4. Tender of Goods for Storage.
   • Customer shall deliver all goods for storage at the Warehouse properly marked and packaged for handling, storage and movement of goods.
   • Customer shall furnish at or prior to such delivery, a manifest showing marks, brands, or sizes to be kept and accounted for separately, and the class of storage and other services desired. Otherwise the goods may be stored in bulk or assorted lots in general storage at the discretion of Company and charges for such storage will be made at the applicable storage rate.
   • Receipt and delivery of all or any unit of a lot shall be made without subsequent sorting except as agreed and subject to a charge.
   • Company shall store and deliver goods only in the packages in which they are originally received unless otherwise agreed to in writing.
   • Company shall not be responsible for segregating goods by production code date unless specifically agreed to in writing.
   • Copper, explosives, goods requiring “protective security service or armed guard surveillance,” human remains, precious metals, currency, object d’art, collection, antiques or precious stones, jewelry, manufactured tobacco products, ammunition, or any items of unusual value shall not be stored on Company’s premises without Company’s express written consent.

 

5. Storage Charges.
   • Company shall invoice Customer according to the quoted by Company or agreed in writing. Additionally, any rates, which may be verbally agreed upon, shall be deemed confirmed in writing where Company has billed the rate and Customer has paid it. All written confirmations of rates, including confirmations by billing and payment, shall be incorporated herein by this reference.
   • Customer shall pay Company storage charges and the charges for any additional services within 30 days of the invoice date without deduction or setoff.
   • Dunnage, bracing, packing materials or other special supplies may be provided by Company for Customer at a charge in addition to Company’s cost as agreed to in writing or at the billed rate..
   • Storage charges include the ordinary labor involved in receiving goods at the door of the warehouse. Any additional labor requested will be charged by Company to Customer.
   • Storage charges do not include bonded storage. An additional charge may apply if Company agrees to store any goods in bond. If a warehouse receipt covers goods in U.S. Customs bond, such receipt shall be void upon the termination of the storage period fixed by law.
   • Customer may not offset claims for loss or damage to goods against amount owed to Company unless otherwise agreed to in writing.
   • Company reserves the right to adjust rates for warehousing, storage and affiliated services in its discretion, with 30 days’ advance notice.
   • Should Customer stop doing business or reduce its business with Company below levels agreed upon between the parties, Customer shall be liable for all unrecoverable contractually obligated charges for the agreed upon term.
   • Company may submit invoices through its Affiliate and such administrative functions shall not alter the services outlined in these Terms and Conditions, make Company liable for its Affiliates’ conduct, or establish any kind of joint liability between Company and its Affiliates.

 

6. Transfer. Instructions to transfer goods on the books of Company are not effective until delivered to and received by Company, and all charges up to the time transfer is made are chargeable to the Customer of record. If a transfer involves re-handling the goods, such re-handling will be subject to charges at Company’s standard rates.

 

7. Release.
   • No goods shall be released or transferred except upon receipt by Company of complete written instructions. However, when no negotiable receipt is outstanding, goods may be released upon instruction by telephone, but Company shall not be responsible for loss or error occasioned thereby.
   • Customer shall afford Company a reasonable time to release goods and shall afford Company at least 10 business days after receipt of a delivery order to locate any misplaced goods. If Company has exercised reasonable care and is unable, due to causes beyond its control, to release goods before expiration of the current storage period, the goods will be subject to storage charges for each succeeding storage period. If Company is unable to release goods because of acts of God, flood, war, public enemies, seizure under legal process, strikes, lockouts, riots and civil commotions, other force majeure causes, or any reason beyond Company’s control, or because of loss or destruction of goods for which Company is not liable, or because of any other excuse provided by law, Company shall not be liable for failure to release the goods and the goods remaining in storage will continue to be subject to regular storage charges.
   • All instructions and requests for release or transfer of title are received subject to satisfaction of all charges, liens and security interests of Company with respect to the goods whether for accrued charges, advances, or otherwise.
   • Company may require, as a condition precedent to release, a statement from Customer holding Company harmless from claims of others asserting a superior right to Customer to possession of the goods. Nothing herein shall prevent Company from exercising any other remedy available to it under the law to resolve conflicting claims to possession of the goods. All costs, including attorney’s fees, incurred by Company relating to Company’s activities referred to in this subsection may be charged to Customer and shall be subject to Company’s lien described herein.

 

8. Termination of Storage. Company may at any time require the removal of any goods by the end of the next succeeding calendar month by providing written notice to Customer. If goods are not removed before the end of the next succeeding calendar month, Company may dispose of the goods in accordance with applicable law.

 

9. Handling of Goods.
   • Company shall provide the ordinary labor involved in receiving goods at the door of the warehouse, placing goods in storage, and releasing the goods to the warehouse door for delivery. Customer shall pay Company for services requested other than ordinary handling and storage as agreed to in writing by Company or at the billed rate.
   • Customer shall pay Company for Company’s additional expenses in receiving and returning damage goods and loading or unloading goods at a place other than the warehouse door.
   • Company shall not be required to store goods in a humidity-controlled or temperature-controlled environment.
   • Customer may be subject to an escort fee if Customer’s access to Company’s premises requires that Company personnel escort Customer.
   • Customer shall not use Company’S EQUIPMENT (including, but not limited to, loading, unloading, handling, CRATING, pacKaging, and construction equipment) without written permission from Company Group. If Company Group allows Customer to use any of Company Group’s equipment for any reason, Customer acknowledges that Customer accepts all risk and responsibility of damage to property and injury and/or death to any person(s) arising from such use. Customer shall ensure that any person using Company’s equipment IS qualified and certified in accordance with OSHA REQUIREMENTS and all applicable statutes AND regulations to operate the equipment in the conditions presented. CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS COMPANY Group FROM ANY CLAIM ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSE ARISING FROM CUSTOMER’s use of Company Group’s equipment, EVEN IF SUCH CLAIM, ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSES (INCLUDING WITHOUT LIMITATION, ALL COSTS, EXPENSES AND ATTORNEYS' FEES), IS CAUSED IN WHOLE OR IN PART BY A PRE-EXISTING DEFECT IN SAID EQUIPMENT.
   • Company Group shall not be liable for damages to Customer’s and Customer’s contractors’ loading, unloading, packaging and related equipment and materials or damages to person or property arising from use of such equipment and materials, except to the extent of Company’s proportionate fault. CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS Company Group FROM ANY CLAIM ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSE ARISING FROM SUCH equipment OR MATERIALS OR THE USE THEREOF, EXCEPT TO THE EXTENT OF COMPANY’s proportionate fault.
   • Notwithstanding anything in these Terms and Conditions to the contrary, Company is not responsible nor have any role in the securement of cargo for transportation, nor shall Company be responsible for the inspection or approval of securement by any motor carrier transporting the cargo from the facility.

 

10. Company’s Limited Liability.
    • COMPANY SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY TO GOODS STORED HOWEVER CAUSED REGARDLESS OF COMPANY’S LEVEL OF FAULT. IT IS AGREED THAT THE GOODS ARE STORED AT CUSTOMER’S SOLE RISK OF LOSS.
    • Company GROUP shall not be liable in contract, tort, or otherwise for incidental, special, consequential, exemplary, or punitive damages in connection with its performance under THESE TERMS, including without limitation, lost profits and lost opportunity, even if such damages were reasonably foreseeable and even if Company GROUP was notified of the possibility of such damages AND EVEN IF SUCH CLAIM, ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSES IS CAUSED IN WHOLE OR IN PART BY A PRE-EXISTING DEFECT, THE NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT), GROSS NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL FAULT OF COMPANY GROUP (OR ANY SUCH INDEMNITEE).
    • IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION TO GOODS FOR WHICH Company IS LEGALLY LIABLE, CUSTOMER AGREES THAT Company’s MAXIMUM LIABILITY SHALL not exceed $100,000.00 (“RELEASE RATE”). CUSTOMER MAY, HOWEVER, REQUEST AN INCREASE TO THE MAXIMUM LIABILITY OF Company BY: A.) SUBMITTING A WRITTEN REQUEST FOR A HIGHER MAXIMUM LIABILITY BEFORE the GOODS ARE tendered to Company, b.) paying an additional charge based on the increased maximum liability, and c.) obtaining written confirmation of the higher maximum liability from an officer of Company. This maximum liability applies to the aggregate of all of Customer’s goods stored BY Company at any given time.
    • under no circumstances shall COMPANY’s liability for loss or damage to goods exceed THE GREATER OF 1) the amount available to cover the loss or damage under COMPANY GROUP’s insurance, wHICH IS subject to the POLICY conditions, then existing coverage limits, and amount remaining under the policy for coverage, OR 2) $500 for all of customer’s goods in the possession of COMPANY GROUP; UNLESS CUSTOMER 1) submits a written request for COMPANY GROUP to be liable in excess of COMPANY’s insurance coverage, 2) pays an additional charge, as applicable, based on the increased liability, and 3) receives written confirmation from an officer of COMPANY of acceptance of liability ABOVE insurance coverage; THIS limitation of liability shall not alter or affect COMPANY’s release RATE and the procedures contained herein to increase COMPANY’s release RATE. This maximum liability applies to the aggregate of all of Customer’s goods stored BY Company at any given time.
    • COMPANY Group’S MAXIMUM LIABILITY REFERRED TO above SHALL BE CUSTOMER’S EXCLUSIVE REMEDY AGAINST COMPANY OR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS, AGENTS, REPRESENTATIVES AND INSURERS FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF GOODS AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS. Customer WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.
    • WHERE LOSS OR INJURY OCCURS TO STORED GOODS, FOR WHICH Company IS NOT LIABLE, Customer SHALL BE RESPONSIBLE FOR THE COST OF REMOVING AND DISPOSING OF SUCH GOODS AND THE COST OF ANY ENVIRONMENTAL CLEAN UP AND SITE REMEDIATION RESULTING FROM THE LOSS OR INJURY TO THE GOODS.

 

11. Indemnification by Customer. CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD COMPANY Group, COMPANY’s AFfiliates, LIENHOLDER, AND THEIR RESPECTIVE AGENTS HARMLESS FROM: any INJURY to or death of any person; any damage to or loss of property; any environmental damage including spills and pollution; AND ANY RESULTING OR RELATED CLAIM, ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSE, INCLUDING ATTORNEY'S FEES AND OTHER FEES AND COURT AND OTHER COSTS arising from customer’s acts or omissions related to THESE TERMS, except to the extent of Company Group’s PROPORTIONATE FAULT. THE INDEMNITY CONTAINED IN THIS PARAGRAPH: (a) IS INDEPENDENT OF CUSTOMER’S INSURANCE obligations IN THESE TERMS AND CONDITIONS; (B) WILL SURVIVE THE termination OF these Terms and Conditions, AND (C) shall apply in instances where Company group, customer, and/or third parties are at fault (except to the extent of Company group’s proportionate fault).

 

12. Insurance.
    • Customer or its contractors (excluding any member of Company Group) shall maintain the following insurance policies, at Customer’s sole cost and expense, with at least the coverages described below:
      • Comprehensive General Liability Insurance, including contractual liability coverage, and bodily injury and property damage coverage, with limits of no less than $2,000,000.00 per occurrence, or the amount required by law, whichever is higher;
      • Worker's Compensation Insurance or Occupational Disease Insurance, and Employer's Liability Insurance with limits of no less than $1,000,000.00, or the amount required by law, whichever is higher, for accidents or occupational disease covering all work related to Customer’s business; and
      • Commercial Auto Liability Insurance, with a combined single limit of no less than $1,000,000.00 to injuries to any person or for damages to property in any one occurrence.
      • Insurance covering loss or damage for the total value of all of Customer’s goods while in the possession of Company.
    • Customer’s insurance shall include the following terms, and Customer shall furnish to Company Certificates of Insurance evidencing the insurance required   The insurance policies as evidenced by the Certificates of Insurance must contain the following terms:
      • Inclusion of Company and its Affiliates as additional insured on the aforementioned policies;
      • Waiver of subrogation in favor of Company Group on the aforementioned policies;
      • The on the aforementioned policies shall be primary and non-contributory to any other coverage in favor of Company;
      • The policies and insurance certificates shall provide coverage in those territories as may be applicable to the location where the services will be performed; and
      • 30 days' prior written notice will be given to Company in the event of cancellation, suspension, or material change in the policy to which it relates.
    • The insurance requirements contained herein shall in no way limit Customer’s liability or responsibility under these Terms and Conditions nor shall they be construed to be the ultimate types and amounts of insurance Customer should maintain to adequately insure itself.
    • Failure of Customer to provide a compliant Certificate of Insurance and Company’s failure to insist upon a compliant Certificate of Insurance shall in no way alter the requirements herein.

 

13. Company’s Lien and Security Interest. To secure Customer’s performance under these Terms and Conditions, Customer grants to Company a lien and security interest against: (1) all of Customer’s non-exempt personal property that is in or on the Warehouse or any other property in Company’s possession; (2) all lawful claims for money advanced, interest, insurance, transportation, labor, and other charges and expenses in relation to Customer’s non-exempt personal property and goods in or on the Warehouse; and (3) the balance on any other Customer, or Customer’s affiliates, accounts that may be due. This is a security agreement for the purposes of the Uniform Commercial Code and Company may file a financing statement to perfect Company’s security interest under the Uniform Commercial Code. Company shall have a lien on the non-exempt personal property and goods of Customer and may refuse to surrender possession until all charges or debts of Customer, or Customer affiliates, are paid in full. In addition to the charges described herein, Customer shall be liable for any and all expenses Company incurs to sell or dispose of the goods, including, but not limited to, attorney fees, transportation costs, administrative costs, and expenses necessary for the preservation of the goods. Company shall have the right to pay another service provider, whether hired by Company or not, for services provided with relation to transportation, handling, warehousing, or related services, including instances where Company provides such services, Company hires a third party to provide the services, or otherwise. Customer consents to such costs being included in Company’s lien and sale of the goods to satisfy such costs. Customer remains responsible for any deficiency outstanding to Company.

        Customer agrees that any goods sold pursuant to a claim of a Company’s lien shall be deemed to be goods stored for hire by a merchant in the course of its business, and the sale may be accomplished by any means allowed by law for merchants or otherwise. Customer agrees that any sale by Company shall be commercially reasonable, and Customer waives all claims that a sale of goods is not commercially reasonable.

 

14. Notice of Claims.
    • It is a condition precedent to recovery on any claim against Company that Customer shall present all claims for loss or damage to goods to Company in writing within 91 days after delivery or the expected delivery date of the goods underlying the claims. Customer agrees that any claims for which notice is not provided to Company within 91 days are waived.
    • Customer may only maintain an action by Customer or others against Company for loss or damage to goods if said action is commenced within 2 years after delivery or the expected delivery date of the goods underlying the action.
    • As a condition precedent to making any claim and/or filing any suit, Customer shall provide Company a reasonable opportunity to inspect the goods which form the basis of Customer’s claim and/or suit.

 

15. Customer’s Representations.
    • Customer represents and warrants that Customer has lawful possession of the goods and has the right and authority to tender those goods to Company. Customer agrees to indemnify and hold harmless Company Group from all loss, cost and expense (including reasonable attorneys' fees) which Company Group pays or incurs as a result of any dispute or litigation, whether instituted by Company Group or others, respecting Customer's right, title or interest in the goods. Such amounts shall be charges in relation to the goods and subject to Company’s lien.
    • Customer represents and warrants that the information concerning the goods it provides Company will be accurate, complete and sufficient to comply with all laws and regulations concerning the storage, handling, and transporting of the goods, and Customer shall indemnify and hold harmless Company Group from all loss, cost, penalty and expense (including reasonable attorneys’ fees) which Company Group pays or incurs as a result of Customer’s failure to comply with this provision.

 

16. Warehouse Receipt. Any warehouse receipt issued by Company in connection with these Terms and Conditions will be non-negotiable. A warehouse receipt, if issued by Company, may be issued in either physical or electronic form at Company’s option.

 

17. Abandoned Property. Company may retain, destroy, or dispose of any property left on the premises after termination of these Terms and Conditions by providing 60 days’ written notice to Customer by certified mail at Customer’s last known address.

 

18. Force Majeure. Company 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 Company.

 

19. Governing Law; Venue. These Terms and Conditions shall be subject to and governed by the laws of the State of Texas, without regard to choice-of-law principles and irrespective of the fact that one or more of the parties may be or may become a resident of a different state. The parties agree that any and all claims or disputes arising out of or under these Terms and Conditions shall be filed in the appropriate county, state and federal courts located within Harris County, Texas.

 

20. Non-Waiver. The failure or refusal of either party to insist upon the strict performance of any provision of these Terms and Conditions, or to exercise any right in any one or more instances or circumstances shall not be construed as a waiver or relinquishment of such provision or right, nor shall such failure or refusal be deemed a customary practice contrary to such provision or right.

 

21. If any provision in these Terms and Conditions is held to be unenforceable the parties intend and request that the provisions be reformed and replaced with a provision as close as the parties’ original intent as permitted by law, and that as much of these Terms and Conditions remain in effect as permitted by law.

 

Soren Transport, Inc.’s

Terms and Conditions of Air Freight Services

 

WHEREAS Soren Transport Inc. (“Company”) arranges for transportation of shipments through air carriers; and WHEREAS Customer, to satisfy some of its logistics needs, desires to utilize air carrier services. NOW THEREFORE, intending to be legally bound, Company and Customer agree the following Air Freight Terms and Conditions as follows will apply to air freight services arranged by Company:

 

 

1. Definitions.
   • “Customer” shall refer to the person or entity tendering the goods, the person or entity holding title to the goods, and the owner of the goods and their employees, contractors, invitees, and agents.

 

2. Application. These Terms and Conditions shall apply to all of Customer’s goods tendered to Company and transported by air carriers arranged by Company. In the event of a conflict between any term of these Terms and Conditions and any other document, all other terms pertaining to air transportation of Customer’s goods shall be superseded by these Terms and Conditions. The terms in these Terms and Conditions can only be superseded upon authorization by an Officer of Company. If Customer is not the owner of the goods or does not have title to the goods, Customer agrees that it acts as the owner’s and title holder’s agent and also agrees to these Terms and Conditions on behalf of the owner and title holder of the goods and other interested parties. Any services provided by third party motor carriers will be subject to the Brokerage Services Terms and Conditions herein.

 

3. Shipment of Goods by Air. Company will arrange for air transportation of Customer’s freight pursuant to these Terms and Conditions. Company’s responsibility will be limited to arranging for, but not actually performing, transportation of Customer’s freight. Company does not exercise or retain any control or supervision over any air carrier, its operations, employees, or contractors. Company reserves the right, in its sole discretion, to refuse any shipment at any time. The relationship between Company and Customer is that of one independent contractor with another, and nothing herein is intended to create a joint venture, partnership, agency, or any employment relationship.

 

4. Rates and Fees. Quotes are based on information provided by the Customer. Unless indicated, the price excludes charges for detention time, per diem and additional stops. Customer will be liable for all additional charges incurred relating to the transportation of Customer’s freight. The quoted rate depends on the weight, dimension and released value of the property described. Any changes to the actual released value, dimension, description or weight of the load may result in revisions to the quoted price.

 

5. Payments. Company or Company’s affiliate will invoice Customer for Company’s services in accordance with the rates, charges and provisions negotiated and agreed to between Customer and Company. Customer agrees to pay Company’s invoice within 15 days of the invoice date without deduction or setoff. Late payments are subject to a charge for late payment of 1.5% accruing monthly, or the maximum allowable by law, whichever is lower. As a convenience to Customer, invoices may be processed by Company’s affiliated entity and such administrative support in issuing invoices will not alter Company’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. In the event of a loss, Customer’s claim and any remedies will be directed to, and the sole responsibility of, the actual Carrier performing transportation services for the particular shipment at issue, to the extent of any claim for loss, damage or delay.

 

6. Third Party Billing & Freight Charge Liability. A shipment in which charges are to be paid by a party other than the Customer, will be accepted provided recourse against the Customer, shipper, consignor, and/or consignee is preserved, regardless of any other representation on the Bill of Lading or other shipping document. The Customer guarantees to pay the charges if the third party fails to do so in the time allotted under the applicable credit regulations.

 

7. Liability for Loss, Damage, or Delay. Company will assist with processing of claims on behalf of its Customers. Company shall not be liable for the conduct of air carriers hired by Company. Company shall not be liable for loss or damage arising from subcontracting by the air carrier hired by Company, nor shall Company be liable for loss or damage related to fraud perpetrated on or by the air carrier hired by Company. COMPANY is not liable for loss or damage to cargo, UNLESS the loss or damage is caused by the SOLE negligence OR FAULT of COMPANY. THIS RELEASE SHALL INCLUDE SITUATIONS WHERE COMPANY IS CONCURRENTLY NEGLIGENT OR AT FAULT. In no event WILL COMPANY be liable for DAMAGES ARISING FROM DELAY OR any special, incidental or consequential damages, including damages relating to loss of profits, whether or not such damages were reasonably foreseeable. COMPANY shall be entitled to all limitations of liability, rights, and protections available to the carrier, including, but not limited to the terms in the bill of lading, terms and conditions, rules tariff, and other documents. Company WILL not BE liable for PERsonal injury or death or property damage ARISING FROM, RELATED TO, OR CONNECTED WITH THE CONDUCT OF the AIR carrier.

 

THE FOLLOWING LIMITATIONS OF LIABILITY SHALL APPLY TO ALL CARGO LOSS OR DAMAGE UNLESS, (1) CUSTOMER REQUESTS A HIGHER LIMITATION OF LIABILITY, (2) CUSTOMER PAYS THE INCREASED RATE ASSOCIATED WITH THE HIGHER LIABILITY, AS APPLICABLE, AND (3) AN OFFICER OF COMPANY CONFIRMS THE HIGHER LIABILITY IN WRITING. COMPANY’S RATES ARE BASED ON A LIMITED RELEASED VALUE, AND COMPANY WILL NOT BE RESPONSIBLE FOR CARGO LOSS OR DAMAGE IN EXCESS OF:

(a)              Domestic US air - $.50 per pound up to $50 per shipment; and

(b)             International air - the applicable international carriage of goods convention but if none is applicable $20 per kilogram.

 

IN THE EVENT COMPANY IS LIABLE FOR LOSS OR DAMAGE TO CARGO, COMPANY’S LIABILITY SHALL BE LIMITED TO THE AMOUNT OF ACTUAL INSURANCE COVERAGE PROVIDED TO COMPANY BY ITS INSURERS, IF ANY; IN THE EVENT NO INSURANCE COVERAGE IS PROVIDED TO COMPANY, COMPANY’S LIABILITY SHALL BE LIMITED TO $500.

8. Force Majeure. Company will not be liable for failure to perform any of its obligations under these Terms and Conditions during any time in which such performance is prevented by circumstances beyond Company’s control including but not limited to an act of God, fire, flood, or other natural disaster, war, embargo, riot, strike, lock-out, labor disturbance, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of Company.

 

9. Disclaimer of Warranties. Except as expressly provided in these Terms and Conditions, Company 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 the website. Company cannot guarantee delivery by any specific time or date.

 

10. Notice of Claims.

 

1. Freight Claims. Customer must give Company written notice of any claims for cargo loss or damage within 180 days from the date of such loss, shortage or damage, which for purposes of these Terms and Conditions will be the delivery date or, in the event of non-delivery, the scheduled delivery date. Customer must file any civil action against Company in a court of law not later than 2 years from the date of delivery or, if delivery was not completed, the expected date of delivery.

 

1. Payment of Claims by Company. If payment of claim is made by Company to Customer, Customer automatically assigns its rights and interest in the claim to Company, and agrees to execute any documents that may be necessary in connection with such assignment. All damage claims will be handled directly with the Carrier or its insurance representatives. Notwithstanding the foregoing, this provision does not obligate Company to pay any claim.

 

1. All Other Claims. Customer shall notify Company of all known material details within 91 days of receiving notice of any facts giving rise to a claim other than cargo loss or damage claims, or else such claims are waived. Customer shall update Company promptly thereafter as more information becomes available. Civil action, or arbitration, if any, must be commenced within 2 years from the date of the event giving rise to the claim.

 

11. Customer Responsibilities.

 

1. Customer must properly mark, pack and label cargo so it will safely endure ordinary handling in transit. By tendering a shipment to the Company, Customer certifies that the shipment is sufficiently packaged to withstand the normal hazards of air transportation.

 

1. Customer shall be responsible to Company for timely and accurate delivery instructions and description of the cargo, including any high value, special value, special handling or security requirements, for any shipment. Any article susceptible to damage by ordinary handling must be adequately protected and packaged and marked in such a way as to alert the underlying carrier of the possibility of damage from ordinary handling and must bear appropriate labels.

 

1. Customer shall provide the underlying carrier(s) with access to the facilities necessary to load or unload the tendered shipments. Customer is solely responsible for maintaining the loading and unloading facilities in a good and safe condition, and in compliance with all applicable laws, codes and regulations. Customer hereby waives and releases COMPANY from any liability for any loss or damage to Customer's facilities or to Customer's personal property located on such facilities. Company will not be responsible for stolen, lost, or damaged goods, containers, chassis, or other equipment after such items have been delivered. Customer will reimburse Company for any costs Company pays or incurs with regard to theft, loss, or other damage to goods, containers, chassis, or other equipment occurring after delivery of the shipment.

 

1. Customer agrees that it is solely responsible for providing the weight and dimensions of any shipment and guarantees that the weights and dimensions given to Company, and its employees, will be true and accurate and accepts all responsibility and liability for any actions and operations performed based on the weights and dimensions provided by Company or Company’s client.

 

1. Customer recognizes that Company has spent substantial time, money and resources developing a reputation in the freight brokerage industry and developing business relationships with carriers through which it arranges transportation of freight of Customer and others and that Company is providing a valuable service to Customer in arranging for transportation of Customer’s freight. Therefore, as part of the consideration for Company arranging for the transportation of Customer’s freight, Customer agrees that for a period of twelve (12) months following the date of any load of freight for Customer that Company arranged to be transported by a particular carrier, that Customer will not offer, tender or refer freight directly to that particular carrier, unless during the twelve (12) month period immediately preceding the first load of freight of Customer that Company arranged to be hauled by that particular carrier, such carrier had hauled sufficient freight directly for Customer (and not arranged through  Company or another broker or other party) to generate at least $10,000 of freight charges. Should Customer violate the provisions of this section, Customer agrees to  pay as liquidated damages, an amount equal to fifteen-percent (15%) of the  gross amount that Customer has agreed to pay such carrier for transporting freight for Customer for a period of twelve (12) months following the date of the last load of Customer’s freight that Company arranged to be transported by that particular carrier.

 

1. Customer agrees that it shall protect and keep confidential any and all non-public, confidential, or proprietary information of Company including, but not limited to, the identity of Company carriers, carrier lists, freight and brokerage rates, pricing, freight volume requirements, or the like and that Customer shall not disclose the same, without the prior written approval of Company.

 

 

12. Shipments not Accepted. Customer will not tender shipments for transportation of explosives, shipments requiring “protective security service or armed guard surveillance,” human remains, precious metals, currency, object d’art, collection, antiques or precious stones, jewelry, manufactured tobacco products, ammunition, or any items of unusual value.

 

13. HAZARDOUS MATERIALS. Customer shall comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR §172.800, §173, and §397 et seq. to the extent that any shipments constitute hazardous materials. Customer is obligated to inform Company immediately if any such shipments constitute hazardous materials. Any hazardous materials tendered and accepted for transportation must be fully and accurately described by the proper shipping name, classified, packaged, marked and labeled/placarded, and in all respects tendered 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. Customer agrees to indemnify, defend, and hold harmless COMPANY and its officers, employees, agents and insurers, against all claims, liabilities, losses, fines, reasonable attoRNey fees and other expenses arising out of or related to the release of any hazardous material, including without limitation, FInes or expenses related to the removal or treatment of hazardous material or other remedial ACTION PERTAINING to the hazardous material under federal or state law, if Customer fails to provide advanced notice prior to tendering hazardous material to COMPANY; the contact, exposure or release resulted from the improper packaging or loading or other acts or omissions of the Customer, its employees or agents; AND the contact, exposure or release occurred subsequent to the transport of the hazardous material by COMPANY or the Carriers.

 

14. Default. Both Company and Customer will discuss any perceived deficiency in performance and will promptly endeavor to resolve all disputes. However, if either party materially fails to perform its duties under these Terms and Conditions, the party claiming default may terminate its duties upon written notice to the other party. Customer shall be responsible to pay Company for any services performed prior to the termination of duties and for shipments not yet completed and/or not yet invoiced to Customer.

 

15. Attorneys’ Fees. In the event any litigation arises from breach of these Terms and Conditions or to collect for the services provided under these Terms and Conditions, Company will be entitled to recover all reasonable costs incurred including court costs, attorney fees, and all other related expenses incurred in such litigation.

 

16. Severability. If any provision of these Terms and Conditions is invalid for any reason whatsoever, these Terms and Conditions will be void only as to such provision, and the remaining terms and conditions will remain binding between the parties. Any provision voided will be replaced with provisions which are as close to Company and Customer’s original intent as permitted under applicable law.

 

17. Non-Waiver. The failure or refusal of either party to insist upon the strict performance of any provision of these Terms and Conditions or to exercise any right in any one or more instances or circumstances will not be construed as a waiver or relinquishment of such provision or right, nor will such failure or refusal be deemed a customary practice contrary to such provision or right.

 

18. Venue and Jurisdiction. These Terms and Conditions shall be subject to and governed by the laws of the State of Texas, without regard to choice-of-law principles and irrespective of the fact that one or more of the parties may be or may become a resident of a different state. The parties agree that any and all claims or disputes arising out of or under these Terms and Conditions shall be filed in the appropriate county, state and federal courts located within Harris County, Texas. Customer hereby waives any claims or objections to personal jurisdiction and/or that such courts will be improper or inconvenient forums.

 

Soren Transport, Inc.’s

Terms and Conditions of Ocean Freight

 

WHEREAS Soren Transport Inc. (“Company”) arranges for transportation of shipments through ocean carriers; and WHEREAS Customer, to satisfy some of its logistics needs, desires to utilize ocean carrier services. NOW THEREFORE, intending to be legally bound, Soren and Customer agree the following Ocean Freight Terms and Conditions as follows will apply to ocean freight services arranged by Company:

 

 

1. Definitions.
   • “Customer” shall refer to the person or entity tendering the goods, the person or entity holding title to the goods, and the owner of the goods and their employees, contractors, invitees, and agents.

 

2. Application. These Terms and Conditions shall apply to all of Customer’s goods tendered to Company and transported by ocean carriers arranged by Company. In the event of a conflict between any term of these Terms and Conditions and any other document, all other terms pertaining to air transportation of Customer’s goods shall be superseded by these Terms and Conditions. The terms in these Terms and Conditions can only be superseded upon authorization by an Officer of Company. If Customer is not the owner of the goods or does not have title to the goods, Customer agrees that it acts as the owner’s and title holder’s agent and also agrees to these Terms and Conditions on behalf of the owner and title holder of the goods and other interested parties. Any services provided by third party motor carriers will be subject to the Brokerage Services Terms and Conditions herein.

 

3. Shipment of Goods by Ocean Carrier. Company will arrange for ocean transportation of Customer’s freight pursuant to these Terms and Conditions. Company’s responsibility will be limited to arranging for, but not actually performing, transportation of Customer’s freight. Company does not exercise or retain any control or supervision over any ocean carrier, its operations, employees, or contractors. Company reserves the right, in its sole discretion, to refuse any shipment at any time. The relationship between Company and Customer is that of one independent contractor with another, and nothing herein is intended to create a joint venture, partnership, agency, or any employment relationship.

 

4. Rates and Fees. Quotes are based on information provided by the Customer. Unless indicated, the price excludes charges for detention time, per diem and additional stops. Customer will be liable for all additional charges incurred relating to the transportation of Customer’s freight. The quoted rate depends on the weight, dimension and released value of the property described. Any changes to the actual released value, dimension, description or weight of the load may result in revisions to the quoted price.

 

Customer shall be solely responsible for all detention charges, costs, fees, expenses to the extent such charges, costs, fees and expenses are paid by Company to the ocean carrier on behalf of Customer. Notwithstanding the foregoing, if the detention fees are as a result of Company’s willful misconduct, as finally determined by a court of competent jurisdiction, Customer shall have no liability for any such detention fees, costs, and expenses to the extent attributable to such willful misconduct.

 

Any taxes/dues/duties calculated on cargo, the vessel and/or freight including dock dues, wharfage, T.H.C., truck loading/unloading or other terminal charges as well as possible extra charges in ports/canals/waterways calculated on the cargo or because of the cargo being on board the vessel shall be payable by Customer, for Customer’s account.

 

5. Payments. Company or Company’s affiliate will invoice Customer for Company’s services in accordance with the rates, charges and provisions negotiated and agreed to between Customer and Company. Customer agrees to pay Company’s invoice within 15 days of the invoice date without deduction or setoff. Late payments are subject to a charge for late payment of 1.5% accruing monthly, or the maximum allowable by law, whichever is lower. As a convenience to Customer, invoices may be processed by Company’s affiliated entity and such administrative support in issuing invoices will not alter Company’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. In the event of a loss, Customer’s claim and any remedies will be directed to, and the sole responsibility of, the actual Carrier performing transportation services for the particular shipment at issue, to the extent of any claim for loss, damage or delay.

 

6. Third Party Billing & Freight Charge Liability. A shipment in which charges are to be paid by a party other than the Customer, will be accepted provided recourse against the Customer, shipper, consignor, and/or consignee is preserved, regardless of any other representation on the Bill of Lading or other shipping document. The Customer guarantees to pay the charges if the third party fails to do so in the time allotted under the applicable credit regulations.

 

7. Liability for Loss, Damage, or Delay. Company will assist with processing of claims on behalf of its Customers. Company shall not be liable for the conduct of ocean carriers hired by Company. Company shall not be liable for loss or damage arising from subcontracting by the ocean carrier hired by Company, nor shall Company be liable for loss or damage related to fraud perpetrated on or by the ocean carrier hired by Company. COMPANY is not liable for loss or damage to cargo, UNLESS the loss or damage is caused by the SOLE negligence OR FAULT of COMPANY. THIS RELEASE SHALL INCLUDE SITUATIONS WHERE COMPANY IS CONCURRENTLY NEGLIGENT OR AT FAULT. In no event WILL COMPANY be liable for DAMAGES ARISING FROM DELAY OR any special, incidental or consequential damages, including damages relating to loss of profits, whether or not such damages were reasonably foreseeable. COMPANY shall be entitled to all limitations of liability, rights, and protections available to the carrier, including, but not limited to the terms in the bill of lading, terms and conditions, rules tariff, and other documents. Company WILL not BE liable for PERsonal injury or death or property damage ARISING FROM, RELATED TO, OR CONNECTED WITH THE CONDUCT OF the OCEAN VESSEL.

For shipments transported by vessel that are arranged by Company, Company shall be liable for loss or damage to the cargo 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. Company’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 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 Company.

 

IN THE EVENT COMPANY IS LIABLE FOR LOSS OR DAMAGE TO CARGO, COMPANY’S LIABILITY SHALL BE LIMITED TO THE AMOUNT OF ACTUAL INSURANCE COVERAGE PROVIDED TO COMPANY BY ITS INSURERS, IF ANY; IN THE EVENT NO INSURANCE COVERAGE IS PROVIDED TO COMPANY, COMPANY’S LIABILITY SHALL BE LIMITED TO $500.

 

8. Force Majeure. Company will not be liable for failure to perform any of its obligations under these Terms and Conditions during any time in which such performance is prevented by circumstances beyond Company’s control including but not limited to an act of God, fire, flood, or other natural disaster, war, embargo, riot, strike, lock-out, labor disturbance, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of Company.

 

9. Disclaimer of Warranties. Except as expressly provided in these Terms and Conditions, Company 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 the website. Company cannot guarantee delivery by any specific time or date.

 

10. Notice of Claims.

 

1. Freight Claims. Customer must give Company written notice of any claims for cargo loss or damage within 180 days from the date of such loss, shortage or damage, which for purposes of these Terms and Conditions will be the delivery date or, in the event of non-delivery, the scheduled delivery date. Customer must file any civil action against Company in a court of law not later than 2 years from the date of delivery or, if delivery was not completed, the expected date of delivery.

 

1. Payment of Claims by Company. If payment of claim is made by Company to Customer, Customer automatically assigns its rights and interest in the claim to Company, and agrees to execute any documents that may be necessary in connection with such assignment. All damage claims will be handled directly with the Carrier or its insurance representatives. Notwithstanding the foregoing, this provision does not obligate Company to pay any claim.

 

1. All Other Claims. Customer shall notify Company of all known material details within 91 days of receiving notice of any facts giving rise to a claim other than cargo loss or damage claims, or else such claims are waived. Customer shall update Company promptly thereafter as more information becomes available. Civil action, or arbitration, if any, must be commenced within 2 years from the date of the event giving rise to the claim.

 

11. Customer Responsibilities.

 

1. Customer must properly mark, pack and label cargo so it will safely endure ordinary handling in transit. By tendering a shipment to the Company, Customer certifies that the shipment is sufficiently packaged to withstand the normal hazards of air transportation.

 

1. Customer shall be responsible to Company for timely and accurate delivery instructions and description of the cargo, including any high value, special value, special handling or security requirements, for any shipment. Any article susceptible to damage by ordinary handling must be adequately protected and packaged and marked in such a way as to alert the underlying carrier of the possibility of damage from ordinary handling and must bear appropriate labels.

 

1. Customer shall provide the underlying carrier(s) with access to the facilities necessary to load or unload the tendered shipments. Customer is solely responsible for maintaining the loading and unloading facilities in a good and safe condition, and in compliance with all applicable laws, codes and regulations. Customer hereby waives and releases COMPANY from any liability for any loss or damage to Customer's facilities or to Customer's personal property located on such facilities. Company will not be responsible for stolen, lost, or damaged goods, containers, chassis, or other equipment after such items have been delivered. Customer will reimburse Company for any costs Company pays or incurs with regard to theft, loss, or other damage to goods, containers, chassis, or other equipment occurring after delivery of the shipment.

 

1. Customer agrees that it is solely responsible for providing the weight and dimensions of any shipment and guarantees that the weights and dimensions given to Company, and its employees, will be true and accurate and accepts all responsibility and liability for any actions and operations performed based on the weights and dimensions provided by Company or Company’s client.

 

1. Customer recognizes that Company has spent substantial time, money and resources developing a reputation in the freight brokerage industry and developing business relationships with carriers through which it arranges transportation of freight of Customer and others and that Company is providing a valuable service to Customer in arranging for transportation of Customer’s freight. Therefore, as part of the consideration for Company arranging for the transportation of Customer’s freight, Customer agrees that for a period of twelve (12) months following the date of any load of freight for Customer that Company arranged to be transported by a particular carrier, that Customer will not offer, tender or refer freight directly to that particular carrier, unless during the twelve (12) month period immediately preceding the first load of freight of Customer that Company arranged to be hauled by that particular carrier, such carrier had hauled sufficient freight directly for Customer (and not arranged through  Company or another broker or other party) to generate at least $10,000 of freight charges. Should Customer violate the provisions of this section, Customer agrees to  pay as liquidated damages, an amount equal to fifteen-percent (15%) of the  gross amount that Customer has agreed to pay such carrier for transporting freight for Customer for a period of twelve (12) months following the date of the last load of Customer’s freight that Company arranged to be transported by that particular carrier.

 

1. Customer agrees that it shall protect and keep confidential any and all non-public, confidential, or proprietary information of Company including, but not limited to, the identity of Company carriers, carrier lists, freight and brokerage rates, pricing, freight volume requirements, or the like and that Customer shall not disclose the same, without the prior written approval of Company.

 

12. Shipments not Accepted. Customer will not tender shipments for transportation of explosives, shipments requiring “protective security service or armed guard surveillance,” human remains, precious metals, currency, object d’art, collection, antiques or precious stones, jewelry, manufactured tobacco products, ammunition, or any items of unusual value.

 

13. HAZARDOUS MATERIALS. Customer shall comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR §172.800, §173, and §397 et seq. to the extent that any shipments constitute hazardous materials. Customer is obligated to inform Company immediately if any such shipments constitute hazardous materials. Any hazardous materials tendered and accepted for transportation must be fully and accurately described by the proper shipping name, classified, packaged, marked and labeled/placarded, and in all respects tendered 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. Customer agrees to indemnify, defend, and hold harmless COMPANY and its officers, employees, agents and insurers, against all claims, liabilities, losses, fines, reasonable attoRNey fees and other expenses arising out of or related to the release of any hazardous material, including without limitation, FInes or expenses related to the removal or treatment of hazardous material or other remedial ACTION PERTAINING to the hazardous material under federal or state law, if Customer fails to provide advanced notice prior to tendering hazardous material to COMPANY; the contact, exposure or release resulted from the improper packaging or loading or other acts or omissions of the Customer, its employees or agents; AND the contact, exposure or release occurred subsequent to the transport of the hazardous material by COMPANY or the Carriers.

 

14. Default. Both Company and Customer will discuss any perceived deficiency in performance and will promptly endeavor to resolve all disputes. However, if either party materially fails to perform its duties under these Terms and Conditions, the party claiming default may terminate its duties upon written notice to the other party. Customer shall be responsible to pay Company for any services performed prior to the termination of duties and for shipments not yet completed and/or not yet invoiced to Customer.

 

15. Attorneys’ Fees. In the event any litigation arises from breach of these Terms and Conditions or to collect for the services provided under these Terms and Conditions, Company will be entitled to recover all reasonable costs incurred including court costs, attorney fees, and all other related expenses incurred in such litigation.

 

16. Severability. If any provision of these Terms and Conditions is invalid for any reason whatsoever, these Terms and Conditions will be void only as to such provision, and the remaining terms and conditions will remain binding between the parties. Any provision voided will be replaced with provisions which are as close to Company and Customer’s original intent as permitted under applicable law.

 

17. Non-Waiver. The failure or refusal of either party to insist upon the strict performance of any provision of these Terms and Conditions or to exercise any right in any one or more instances or circumstances will not be construed as a waiver or relinquishment of such provision or right, nor will such failure or refusal be deemed a customary practice contrary to such provision or right.

 

18. Venue and Jurisdiction. These Terms and Conditions shall be subject to and governed by the laws of the State of Texas, without regard to choice-of-law principles and irrespective of the fact that one or more of the parties may be or may become a resident of a different state. The parties agree that any and all claims or disputes arising out of or under these Terms and Conditions shall be filed in the appropriate county, state and federal courts located within Harris County, Texas. Customer hereby waives any claims or objections to personal jurisdiction and/or that such courts will be improper or inconvenient forums.