FREIGHT FORWARDING TERMS AND CONDITIONS
1. Agreement. In the event Smart Warehousing LLC (“SW”) arranges any transportation services for the Depositor, these terms and conditions shall govern the transportation services. In the event the terms and conditions herewith conflict with any other agreement between the Parties, these terms and conditions shall govern only the transportation services.
2. Services. Subject to the terms and conditions herein and the terms of the Master Warehousing Agreement and/or Statement of Work describing the scope of work and price for said scope of work between the Parties, Depositor hereby engages SW, and SW hereby accepts such engagement, to arrange transportation of Depositor's Goods (the "Freight") with third-party carriers (each a "Carrier" and collectively the "Carriers") pursuant to Depositor's requests for shipments made from time to time. In addition to arranging for the shipping of the Freight, SW may provide additional services, including without limitation preparing and distributing documents on behalf of each Carrier, including the Bill of Lading (as defined in Section 3 below). Any services to be provided hereunder by SW shall collectively be referred to herein as the "Transportation Services." Without limitation on the foregoing, SW will not be responsible for the actual shipping and transportation of the Freight and therefore, will not, at any time, take possession of the Freight or be deemed a carrier thereof. SW acts as the “agent” of the Depositor for the purposes of the Transportation Services.
3. Carrier Agreements. In connection with the Transportation Services, SW shall be obligated to enter into written agreements with each Carrier transporting Freight on Depositor's behalf (each a "Carrier Agreement"). Unless services are performed by persons or firms engaged pursuant to express written instructions from the Depositor, SW shall use reasonable care in its selection of third parties, or in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment; advice by SW that a particular person or firm has been selected to render services with respect to the goods, shall not be construed to mean that SW warrants or represents that such person or firm will render such services nor does SW assume responsibility or liability for any action(s) and/or inaction(s) of such third parties and/or its agents, and shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a third party or the agent of a third party; all claims in connection with the act of a third party shall be brought solely against such party and/or its agents; in connection with any such claim, SW shall reasonably cooperate with the Depositor, which shall be liable for any charges or costs incurred by SW. Within 4 days of a Carrier's receipt and acceptance of Freight pursuant to a Carrier Agreement, SW shall provide Depositor with a bill of lading (each a "Bill of Lading") as proof of such delivery and acceptance. SW shall be under no obligation to specify thereon the number of pieces, packages and/or cartons, etc.; unless specifically requested to do so in writing by Depositor or its agent and Depositor agrees to pay for same, SW shall use the weight supplied by Depositor. Each Bill of Lading shall serve as a receipt for Depositor's records. Any term or condition set forth in any Bill of Lading shall not apply to the transportation of Freight hereunder and/or modify or supplement the terms of this Agreement or any Carrier Agreement in any way.
4. Claims. Unless subject to a specific statute, all claims against SW for a potential or actual loss in regards to Freight, must be made in writing and received by SW, within ninety (90) days of the event giving rise to a claim.
5. Quotations. Quotations as to fees, rates of duty, freight charges, insurance premiums or other charges given by SW to the Depositor are for informational purposes only and are subject to change without notice; no quotation shall be binding upon SW unless SW in writing agrees to undertake the handling or transportation of the shipment at a specific rate or amount set forth in the quotation and payment arrangements are agreed to between SW and the Depositor.
6. Reliance On Information Furnished.
(a) Depositor acknowledges that it is required to review all documents prepared and will immediately advise SW of any errors, discrepancies, incorrect statements, or omissions on any document filed on Depositor’s behalf; (b) In preparing and submitting documentation to a third party, SW relies on the correctness and completeness of all documentation, whether in written or electronic format, and all information furnished by Depositor; Depositor shall use reasonable care to insure the correctness and completeness of all such information and shall indemnify and hold SW harmless from any and all claims asserted and/or liability or losses suffered by reason of any incorrect, incomplete or false statement upon which SW reasonably relied. The Depositor agrees that the Depositor has an affirmative non-delegable duty to disclose any and all information required for the Goods; (c) Depositor acknowledges that it is required to provide verified gross weights obtained on calibrated, certified equipment of all cargo that is to be tendered and represents that SW is entitled to rely on the accuracy of such weights and to counter-sign or endorse it as the agent of Depositor in order to provide the certified weight to third parties. The Depositor agrees that it shall defend, indemnify and hold SW harmless from any and all claims, losses, penalties or other costs resulting from any incorrect or questionable statements of the weight provided by the Depositor or its agent or contractor on which SW relies.
7. Declaring Higher Value To Third Parties. Third parties to whom the Goods are entrusted may limit liability for loss or damage; SW will request excess valuation coverage only upon specific written instructions from the Depositor, which must agree to pay any charges therefore; in the absence of written instructions or the refusal of the third party to agree to a higher declared value, at SW's discretion, the Goods may be tendered to the third party, subject to the terms of the third party’s limitations of liability and/or terms and conditions of service.
8. Insurance. Unless requested to do so in writing in sufficient time prior to shipment from point of origin and confirmed to Depositor in writing, SW is under no obligation to procure insurance covering the Goods in transit on Depositor's behalf. SW does not undertake or warrant that such insurance can or will be placed. In all cases, Depositor shall pay all premiums and costs in connection with procuring requested insurance. Should an insurer dispute its liability for any reason, the insured shall have recourse against the insurer only and SW shall not be under any responsibility or liability in relation thereto, notwithstanding that the premium upon the policy may not be at the same rates as that charged or paid to SW by the Depositor or that the shipment was insured under a policy in the name of SW. SW shall use commercially reasonable efforts to ensure each Carrier maintains adequate liability insurance and names Depositor as an additional insured on Carrier’s Automobile liability insurance. It being fully understood by Depositor that SW will have no liability in the event Carrier does comply or will not comply with such request.
9. Disclaimers; Limitation of Liability. (a) Except as specifically set forth herein, SW makes no express or implied warranties in connection with its services; (b) Subject to (d) below, Depositor agrees that in connection with any and all services performed by SW, SW shall only be liable for its negligent acts, which are the direct and proximate cause of any injury to Depositor, including loss or damage to Depositor’s Goods, and SW shall in no event be liable for the acts of third parties; (c) In connection with all services performed by SW, Depositor may obtain additional liability coverage, up to the actual or declared value of the shipment or transaction, by requesting such coverage and agreeing to make payment therefore, which request must be confirmed in writing by SW prior to rendering services for the covered transaction(s). (d) In the absence of additional coverage under (c) above, SW's liability shall in no event be liable or responsible for consequential, indirect, incidental, statutory or punitive damages even if it has been put on notice of the possibility of such damages, including any and all loss or damages arising from delay of services.
10. Costs of Collection. In any dispute involving monies owed to SW, SW shall be entitled to all costs of collection, including reasonable attorney's fees and a late payment fee of 1.5% per month of the outstanding balance due, or the highest rate permitted by applicable law.
11. General Lien And Right To Sell Depositor's Property. (a) SW shall have a general and continuing lien on any and all property of the Depositor coming into SW's actual or constructive possession or control for monies owed to SW with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both; (b) SW shall provide written notice to Depositor of its intent to exercise such lien, the exact amount of monies due and owing; Depositor shall notify all parties having an interest in its shipment(s) of SW's rights and/or the exercise of such lien. (c) Unless, within thirty days of receiving notice of lien, Depositor posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of SW, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, SW shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Depositor.
12. No Duty To Maintain Records For Depositor. Unless otherwise agreed to in writing, SW shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but not act as a "recordkeeper" or "recordkeeping agent" for Depositor.
13. Fees and Expenses; Payment. As full and complete consideration for the Transportation Services, Depositor shall pay SW the Fees per the Statement of Work addressing said Transportation Services (the "Fees"). In addition to the Fees, Depositor shall be responsible for all reasonable and necessary out-of-pocket expenses actually incurred by SW hereunder including, without limitation, all Carrier charges, port charges, insurance costs, and handling fees. All charges hereunder are exclusive of sales, use, excise, and related taxes.
14. Indemnification/Hold Harmless. The Depositor agrees to indemnify, defend, and hold SW harmless from any claims and/or liability arising from importer security filing services, the importation or exportation of Depositor’s merchandise and/or any conduct of the Depositor, which violates any Federal, State and/or other laws, and further agrees to indemnify and hold SW harmless against any and all liability, loss, damages, costs, claims and/or expenses, including but not limited to reasonable attorney's fees, which SW may hereafter incur, suffer or be required to pay by reason of such claims, including any claims by any Third party for freight or other charges, duties, fines, penalties, liquidated damages or other money due arising from services provided to or on behalf of the Depositor. The confiscation or detention of the goods by any governmental authority shall not affect or diminish the liability of the Depositor to SW to pay all charges or other money due promptly on demand. In the event that any claim, suit or proceeding is brought against SW, it shall give notice in writing to the Depositor by mail at its address on file with SW.
15. Confidentiality Waiver. Depositor hereby grants SW authorization to disclose to third party vendors and/or carriers the Depositor’s confidential information and shipping information reasonably necessary to perform the Transportation Services.
16. Non-Exclusivity. The Parties agree that this is a non-exclusive agreement. Subject to the terms hereof, Depositor is not prohibited from engaging the services of other freight forwarders, brokers, and/or engaging directly with third party carriers. SW is similarly not restricted from providing freight forwarding and related services to other third parties.
17. Changes to Terms. SW reserves the right, in its sole discretion, to change the FREIGHT FORWARDING TERMS AND CONDITIONS under which the Transportation Services are offered. The most current version of the terms will supersede all previous versions. SW encourages you to periodically review the terms and conditions to stay informed of our updates.
Last Updated: Tuesday, November 8, 2022