These Brokerage Terms and Conditions (“Terms”) are entered into by and between Armstrong Transport Group, LLC (“Broker”) and the undersigned customer (“Customer”) (each a “Party,” collectively the “Parties”) for the provision of domestic and international transportation-related brokerage services. By signing below, the CUSTOMER acknowledges these Terms to serve as the single, comprehensive contract governing all modes and shipments arranged by Broker unless the Parties later execute a written amendment signed by an officer of Broker that expressly supersedes these Terms.
These Terms and Conditions, as amended from time to time by BROKER in its sole discretion and posted on its website, shall govern property-brokerage service (which, for purposes hereof, shall mean the arrangement of motor-carrier transportation between points in the United States, Mexico and/or Canada to be performed by third-party Servicing Motor Carriers as defined below where BROKER is not engaged to arrange transportation by any other mode (including air, ocean or rail) provided by BROKER (“Services”). Any terms and conditions on documents exchanged between the parties other than these Terms and Conditions shall not apply to any Services and shall not be binding on or applicable to BROKER.
CUSTOMER understands and agrees that BROKER functions as an independent entity, and not as a carrier, in selling, negotiating, and arranging for transportation for compensation, and that the actual transportation of shipments tendered to BROKER shall be performed by third-party motor carriers (“Servicing Motor Carriers”).
BROKER and CUSTOMER represent and warrant that their relationship is that of independent contractors and that the respective employees are under their respective exclusive management and control. Nothing in these Terms and Conditions shall be deemed to require BROKER to provide Services upon request of CUSTOMER, and BROKER reserves the right to accept or decline, in its sole discretion, any particular request for Services.
agrees to comply with all applicable federal, state and local laws regarding the provision of such brokerage Services. CUSTOMER warrants and represents that it is authorized to tender the cargo in question to BROKER and that all descriptions of the cargo are complete, accurate, and include all information required by applicable law, rules or regulation.
CUSTOMER shall be solely responsible for complying with any and all applicable laws, rules, regulations, or conventions with respect to classifying, tendering, packaging and labeling such cargo and must provide notice of any such cargo at the time a request for Services is first initiated by CUSTOMER to BROKER.
When requesting service with respect to any shipment containing food that is subject to regulations of the Food and Drug Administration (“FDA”) (hereinafter, “Food”), CUSTOMER shall be solely responsible for identifying handling obligations necessary for the safe and sanitary handling of food and, at the time of the initial request for services with respect to the individual shipment, will provide written notice to BROKER that the consignment contains Food which may have special instructions or handling requirements to be imposed on the Servicing Motor Carrier.
In no event will BROKER have any obligation to provide any instructions to the Servicing Motor Carrier with respect to cargo other than those expressly noted by the CUSTOMER on a load confirmation provided by BROKER to CUSTOMER and BROKER has no obligation to comply with or pass on to the Servicing Motor Carrier any handling instructions received after the initial request for service.
If CUSTOMER does not provide adequate notice, CUSTOMER warrants and represents that the cargo is appropriately packaged to ensure safe and sanitary transportation without the need for any specialized handling by the Servicing Motor Carrier.
BROKER will charge and CUSTOMER will pay the rates and charges set forth in a load confirmation or as otherwise agreed for services provided by BROKER without offset. CUSTOMER agrees to pay BROKER without offset and within thirty (30) days of the invoice date, with interest accruing monthly at a rate of two percent (2%) per month on any unpaid balance. CUSTOMER shall also be liable for any expenses, including attorney fees, BROKER incurs in collecting its rates and charges.
If any information provided by CUSTOMER is inaccurate or incomplete, CUSTOMER acknowledges and agrees that agreed upon rates may, in BROKER’s sole discretion, be revised to reflect the goods actually tendered. CUSTOMER shall also be responsible for any additional accessorial charges imposed by the Servicing Motor Carrier which were not anticipated by BROKER at the time BROKER arranged for services with Servicing Motor Carrier or which were not otherwise included in the rate set forth in the load confirmation.
In no event will BROKER have any responsibility for, and CUSTOMER will defend, indemnify, and hold BROKER harmless from, and will pay and reimburse, any charges imposed by third parties with respect to use of equipment in which cargo tendered by, to or on behalf of CUSTOMER is or has been laden, or for charges assessed with respect to storage or handling of any such equipment, including, but not limited to, charges assessed by steamship lines, rail carriers, rail terminal operators, marine terminal operators or port authorities. Without limiting the generality of the foregoing, BROKER shall have no liability for any such charges arising from or related to port congestion, lack of equipment availability, labor shortages, or other situations impacting port or intermodal transportation operations.
In no event shall either Party be responsible for any special or consequential damages regardless of whether the party to be charged had notice of the possibility of such damages. THE TOTAL LIABILITY OF BROKER WITH RESPECT TO ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO SERVICES PROVIDED PURSUANT TO THESE TERMS AND CONDITIONS WILL BE FOR THE AMOUNT CHARGED BY BROKER WITH RESPECT TO THE SERVICES SPECIFICALLY GIVING RISE TO SUCH CLAIMS OR DAMAGES.
CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS BROKER FROM AND AGAINST, AND SHALL PAY AND REIMBURSE BROKER FOR, ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, FINES, JUDGMENTS, PENALTIES AND AMOUNTS (INCLUDING REASONABLE ATTORNEY FEES) ARISING FROM OR RELATED TO:
THE FOREGOING NOTWITHSTANDING, CUSTOMER’S OBLIGATION TO HOLD HARMLESS, DEFEND, INDEMNIFY, PAY AND REIMBURSE SHALL NOT APPLY TO THE EXTENT ANY CLAIM IS CAUSED BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF BROKER.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. BROKER IS NOT LIABLE FOR THE CONSEQUENCES OF IDENTITY THEFT OR FRAUDULENT CONDUCT OF THIRD PARTIES, INCLUDING UTILIZING THE SERVICES OF ENTITIES REPRESENTING THEMSELVES TO BE SERVICING MOTOR CARRIERS OR REPRESENTATIVES THEREOF.
The BROKER shall be entitled to engage any other person, firm or company to perform any of its obligations hereunder. Selection of a Third Party by the BROKER shall not be construed as a warranty or representation by the BROKER that such Third Party will render services, nor does the BROKER assume responsibility or liability for the actions and/or inactions of such Third Parties, nor for any liability due to delay, loss or damage which occurs while goods are in the custody or control of any such Third Party or agent thereof. The Shipper shall not seek to impose upon any such Third Party any liability greater than that accepted by the Third Party under these conditions.
All claims in connection with the acts or omissions of a Third Party shall be brought solely against such party and/or its agents; in connection with any such claim, the BROKER shall reasonably cooperate with the Shipper, which shall be liable for any charges or costs incurred by the BROKER. If at any time the method and/or route of forwarding selected by the Shipper shall become impossible to perform for any reason, the BROKER may use any other method available at its discretion and all charges and/or expenses incurred in using such method shall be for the Shipper's account.
BROKER makes no express or implied warranties or guarantees concerning delivery time or the locating of a Servicing Motor Carrier to provide the transportation services requested by CUSTOMER.
BROKER shall comply with all insurance and bonding requirements imposed upon it by law, including its obligation to maintain a surety bond or trust fund agreement.
Servicing Motor Carrier to whom goods are entrusted may limit liability for loss or damage, and BROKER agrees that it is bound by such limitations. BROKER will request excess valuation coverage from such Third Parties or through its over insurance provider only upon specific written instructions from the CUSTOMER if received by CUSTOMER at least seventy-two (72) hours prior to scheduled pick-up.
CUSTOMER agrees that it will be solely responsible for the charges associated therewith, and that failure to pay such charges may result in lack of such coverage. In the absence of written instructions, including failure to report cargo value, or the refusal of the Third Party or insurer to agree to a higher declared value, at BROKER's discretion, the goods may be tendered to the Third Party subject to the otherwise applicable limitation of liability without any additional liability on the BROKER. It will otherwise be CUSTOMER's responsibility to insure product in-transit and CUSTOMER acknowledges that if CUSTOMER wishes to declare excess value higher than $100,000, BROKER will have no responsibility to do so and it will be CUSTOMER's responsibility to procure coverage.
BROKER may facilitate claims filing and processing with the Servicing Motor Carrier if CUSTOMER submits to BROKER, within six (6) months of the date of delivery, a written claim, fully supported by all relevant documentation, including but not limited to the signed delivery receipt, listing the nature and cause of the claim for cargo damage. BROKER may, in its sole discretion and without liability to CUSTOMER, discontinue pursuit of claims with the Servicing Motor Carrier if such claim is not resolved within sixty (60) days of receipt by BROKER or if CUSTOMER, in BROKER's sole discretion, fails to cooperate with BROKER in filing of claims with the Servicing Motor Carrier.
CUSTOMER acknowledges and agrees that failure or alleged failure by the Servicing Motor Carrier to comply with shipment handling instructions, or a broken trailer seal, shall not result in any presumption that food has been adulterated, contaminated, or otherwise rendered unfit for its intended purpose, nor otherwise be grounds for rejection of a shipment or filing of a claim for cargo loss and damage without proof of actual loss or damage.
BROKER shall have no liability for cargo loss, damage, or shortage except to the extent such claims are caused by BROKER’s negligent acts or omissions, in which case, BROKER’s liability shall be limited to the charges assessed by BROKER and paid by CUSTOMER with respect to the goods at issue.
In no event will BROKER have any liability arising from or related to the Servicing Motor Carrier's refusal to accept full value liability or the Servicing Motor Carrier otherwise limiting its liability for cargo loss and damage.
CUSTOMER acknowledges and agrees that the sole liability of BROKER with respect to loss, damage or delay to cargo shall be as set forth in this provision and CUSTOMER warrants and represents that if it is not the owner of such cargo, CUSTOMER holds authority from such owner to bind the owner to the provisions of these Terms and Conditions. BROKER shall not be responsible for the contractual obligations the CUSTOMER may have with any other third-party related to the cargo in question.
Notwithstanding anything in these Terms and Conditions to the contrary, in the event, whether upon request of CUSTOMER or in BROKER's discretion, any portion of the underlying transportation is performed by a rail carrier (“Rail Carrier”), CUSTOMER acknowledges and agrees that the Rail Carrier services, including, but not limited to, charges, liability (including limitations) for loss or damage to cargo, and terms and conditions of services are governed by tariffs, circulars or similar documents maintained by the Rail Carrier or other third party logistics provider arranging such Rail Carrier services (the “Rail Conditions”). CUSTOMER acknowledges and agrees that CUSTOMER, and not BROKER, shall be deemed as a shipper or beneficial cargo owner for purposes of application of the Rail Conditions.
As between CUSTOMER and BROKER, CUSTOMER shall be solely responsible for:
BROKER shall have no liability for delay, inability, or failure to perform Services when such performance is affected by port congestion, labor disruptions, governmental acts, weather phenomena, quarantine, embargo, act of war, piracy, or any circumstance beyond BROKER’s reasonable control.
Shipments tendered hereunder may be evidenced by a Bill of Lading (“BOL”) or similar transportation document. In no event will BROKER being shown as the “carrier” on any such document change BROKER's status as a property broker. Upon request of CUSTOMER, BROKER shall request that Servicing Motor Carriers obtain a delivery receipt from the consignee, showing the products delivered, the condition of the shipment and the date and time of such delivery. CUSTOMER waives access to BROKER's records pursuant to 49 C.F.R. Part 371.
Prior to the loading, the consignor, shipper, receiver or any other party physically tendering the cargo for transport (collectively, the “Loading Party”) shall visually inspect and confirm that all identifying information appearing on the applicable BOL or load confirmation including, without limitation, tractor number, trailer number, vehicle identification number (VIN), the motor carrier’s legal and d/b/a names, MC and USDOT numbers, and the driver’s name and commercial driver’s license number (collectively, “Identification Data”) matches the information supplied in writing by BROKER for the corresponding shipment. If any variance exists between the Identification Data presented by the driver and the data provided by BROKER, the Loading Party shall immediately reject the driver and shall not permit the cargo to be loaded.
The Loading Party shall further inspect all placards, decals, and permanent markings affixed to the tractor and trailer to confirm that they are legible, properly affixed, and unaltered; under no circumstances shall cargo be loaded into equipment displaying paper, handwritten, temporary, or otherwise non-permanent placards or markings. BROKER shall not be liable, in contract, tort, or otherwise, for any theft, loss, damage, delay, shortage, or misdelivery arising from or relating to cargo tendered to a driver, tractor, or trailer whose Identification Data or placards were not verified in strict accordance with this Section, and the Loading Party shall indemnify, defend, and hold BROKER harmless from and against any and all claims, liabilities, costs, and expenses (including reasonable attorneys’ fees) resulting from any failure to comply with the foregoing verification obligations.
No date for completion is fixed and in particular but without prejudice to the generality of the foregoing the BROKER accepts no responsibility for departure or arrival dates or times.
If at any stage in any transaction the BROKER should reasonably consider that there is good reason in the Shipper's interests to depart from any of the Shipper's instructions, the BROKER shall be permitted to do so and shall not incur any additional liability in consequence of so doing.
If at any time events or circumstances come to the attention of the BROKER which in the opinion of the BROKER make it wholly or in part impossible or impracticable, commercially or otherwise, for the BROKER to perform for any reason, the BROKER may use any other method available to deal with the goods at its sole discretion and all charges and/or expenses incurred in using such method shall be for the Shipper's account. BROKER shall endeavor where practical to inform the Shipper of such events or circumstances and seek further instructions, but reserves the right, in any event, to do so at Shipper's expense.
Except to the extent governed by other compulsorily applicable law, these Terms and Conditions and the services provided by BROKER shall be governed by and subject to the laws of the State of North Carolina, without regard to any choice-of-law rules.
CUSTOMER AND BROKER AGREE THAT ANY CLAIM OR DISPUTE ARISING FROM OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR SERVICES RENDERED HEREUNDER, WHETHER UNDER FEDERAL, STATE, LOCAL, OR FOREIGN STATUTES, REGULATIONS, OR COMMON LAW, SHALL BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS SERVING CHARLOTTE, NORTH CAROLINA, BROKER AND CUSTOMER HEREBY CONSENT TO THE JURISDICTION OF SUCH COURTS.
In the event CUSTOMER files an action against BROKER, CUSTOMER hereby consents to any BROKER-instituted transfer of such action to any other venue in which BROKER is a party or subsequently becomes a party to an action concerning loss, damage or delay to the cargo that is the subject of CUSTOMER's action. Should BROKER prevail or successfully defend itself in an action involving CUSTOMER, BROKER shall be entitled to reasonable attorney fees and costs.
If any provision of these Terms and Conditions is declared void, invalid or unenforceable by any court of law, the remaining provisions shall, to the extent permitted, remain in full force and effect as though the void, invalid or unenforceable provisions were never included. No agent, servant, or representative of BROKER has authority to alter modify or waive any provision herein unless in a writing signed by an officer of BROKER.
Each party (“Receiving Party”) acknowledges that, in connection with the services provided under this these Terms, it may receive or have access to confidential or proprietary information of the other party (“Disclosing Party”), including but not limited to information regarding shipping lanes, pricing, shipping locations, customer and vendor identities, business strategies, communications between the parties, and any other non-public information, whether written, oral, electronic, or in any other form (“Confidential Information”).
The Receiving Party agrees that it shall:
The obligations set forth in this section shall not apply to information that:
Upon termination or expiration of these Terms, or upon the Disclosing Party's written request, the Receiving Party shall promptly return or destroy all Confidential Information in its possession or control, when requested, except as required to comply with applicable law or bona fide record retention policies.
The obligations of confidentiality set forth in this section shall survive the termination or expiration of these Terms for a period of five (5) years, except with respect to trade secrets, which shall be protected for so long as they remain trade secrets under applicable law.
The following provisions apply only when CUSTOMER requests that BROKER arrange, and BROKER agrees to arrange, all or any portion of the transportation of goods by water (collectively, “Ocean Transportation Services”). These Ocean Transportation provisions supplement, and are fully incorporated into, the Terms above. In the event of a direct conflict between these Ocean Transportation provisions and any other provision of these Terms, these Ocean Transportation provisions shall govern solely with respect to Ocean Transportation Services; otherwise, all other terms remain in full force and effect.
CUSTOMER warrants that it has accurately determined and provided the verified gross mass of any container tendered for international ocean carriage, using properly calibrated and certified equipment, and authorizes BROKER to transmit such VGM to the ocean carrier or its agent as CUSTOMER’s agent.
CUSTOMER shall identify in writing, before tender, any cargo that is hazardous, dangerous, temperature-controlled, oversized, or otherwise requiring specialized handling. CUSTOMER is solely responsible for compliance with all applicable laws, regulations, and conventions governing such cargo, including proper classification, packing, marking, labeling, and documentation.
All ocean freight, surcharges, demurrage, detention, chassis fees, port or terminal charges, customs duties, taxes, and any other amounts assessed by Third Parties in connection with Ocean Transportation Services shall be for CUSTOMER’s account, even if such charges were not anticipated at the time of rate quotation. BROKER may invoice such charges as soon as they are known, and CUSTOMER shall pay BROKER in accordance with the “Payment and Charges” section of these Terms.
In addition to any possessory or general lien provided in these Terms, BROKER shall have a general maritime lien on all cargo and documents relating thereto for any and all sums due from CUSTOMER arising out of Ocean Transportation Services.
Without limiting the general “Force Majeure” provisions of these Terms, BROKER shall have no liability for delay, inability, or failure to perform Ocean Transportation Services when such performance is affected by port congestion, labor disruptions, governmental acts, weather phenomena, quarantine, embargo, act of war, piracy, or any circumstance beyond BROKER’s reasonable control.
The following provisions apply only when CUSTOMER requests that BROKER arrange, and BROKER agrees to arrange, transportation of goods by air (collectively, “Air Cargo Services”). These Air Cargo provisions supplement, and are fully incorporated into, the Terms above. In the event of a direct conflict between these Air Cargo provisions and any other provision of these Terms, these Air Cargo provisions shall govern solely with respect to Air Cargo Services; otherwise, all other terms remain in full force and effect.
Air movements are subject to aircraft availability, operational restrictions, permits, overflight rights, and slot allocations that are outside BROKER’s control. BROKER does not guarantee any particular route, departure or arrival time, or date. CUSTOMER acknowledges that the IAC or Air Carrier may cancel or delay flights and may impose substantial cancellation fees, up to the full agreed price. CUSTOMER shall be fully responsible for all such fees.
Unless expressly included in the quoted rate, CUSTOMER shall be liable for all additional charges assessed by the IAC, Air Carrier, or any governmental authority, including but not limited to: fuel surcharges, de-icing, special handling, storage, screening, palletization, customs duties and taxes, and any lay-over or detention charges. BROKER shall have no obligation to advance such amounts, but if BROKER does so, CUSTOMER shall reimburse BROKER immediately upon demand.
The contract of carriage for air transportation shall be directly between CUSTOMER and the Air Carrier and shall be evidenced by the Air Carrier’s air waybill. If BROKER is shown as shipper/consignor or consignee on any air waybill, BROKER may assign its rights thereunder to CUSTOMER. BROKER’s appearance on an air waybill will not change BROKER’s status as a broker.
BROKER will request higher declared value coverage or cargo insurance from the IAC or Air Carrier only upon CUSTOMER’s written instructions received at least seventy-two (72) hours prior to pick-up, and payment of all related charges. In the absence of such instructions, the shipment may move subject to the otherwise applicable limitations of liability. BROKER is not an insurance broker and bears no responsibility for procuring or maintaining insurance on CUSTOMER’s behalf.
Without Limiting the Indemnification Terms above, CUSTOMER shall defend, indemnify, and hold harmless BROKER, the IAC, the Air Carrier, and their affiliates from and against any and all claims, losses, damages, fines, penalties, and expenses (including attorney fees) arising out of:
This indemnity shall not apply to the extent a claim is determined by a court of competent jurisdiction to have been caused by the negligence or willful misconduct of the party seeking indemnity.
Without limiting the general “Force Majeure” provisions of these Terms, BROKER shall not be liable for delay or failure to perform Air Cargo Services due to weather, air-traffic control restrictions, mechanical breakdown, acts of war or terrorism, governmental actions, labor disturbances, or any event beyond BROKER’s reasonable control.
By signing below, the CUSTOMER acknowledges it read, understood, and agreed to the above Terms and acknowledge it constitutes a single, binding agreement governing all brokerage services provided.
