CREDIT TERMS AND CONDITIONS
The following Terms and Conditions of Service (these “Terms”) govern all transportation and logistics services (the “Services”) that you and your company (the “Company”) may solicit or receive from Direct Connect Logistix, Inc. (“DCL”) or its affiliates. Company and DCL may be individually referred to as a “Party” or jointly as the “Parties” as used herein. These Terms include all documents referenced here or issued by DCL.
Please read carefully. These Terms constitute a legally binding contract between DCL and Company. DCL may update these Terms from time-to-time and the Terms in force at the time of tender will govern. Company accepts and agrees to be bound and abide by these Terms by the act of tendering cargo or otherwise receiving Services from DCL. If Company does not wish to be bound by these Terms then it must not tender cargo to DCL or use its Services.
1. Description of Services. The Services provided by DCL includes its arrangement of the transportation of property between points and places within the contiguous United States in compliance with all applicable federal, state, and local laws and regulations. DCL will provide these Services pursuant to these Terms and any applicable agreement, bill of lading, tariff, rate confirmation, and/or other shipping document issued by DCL or its delivering motor carrier. Company shall be responsible in all events for the timely and accurate delivery of instructions and cargo descriptions, including any special handling requirements, for all shipments it may tender from time to time which DCL may accept or reject in its sole discretion.
2. Quotations Not Binding. Quotations as to fees, rates of duty, freight charges, or other charges given by DCL to Company are for informational purposes only and are subject to change without notice; no quotation is binding upon DCL unless DCL 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 DCL and Company.
3. Rates and Charges. DCL will invoice Company for its Services in accordance with the applicable rate schedule, quote, tariff, arrangement, or agreement terms. Company will pay DCL without offset within fifteen (15) days of the original invoice date. Payment shall be made by ACH, wire, check, or credit card. Checks shall be mailed to Direct Connect Logistix, Inc., 314 Michigan St., Indianapolis, Indiana 46202. Credit card payments are subject to a fifteen dollar ($15) fee for each payment. Company shall tender payment in US currency. In the event Company objects to all or any portion of an invoice, Company shall notify DCL in writing within ten (10) days of the invoice date, give reasons for the objection, and DCL and Company’s respective representatives shall confer to resolve any disputed invoices. Company shall also be liable for any expenses, including attorney’s fees, DCL incurs in collecting its rates and charges. In the event work is provided and it is subsequently discovered that there was no agreed upon rate, the Parties agree that the rate paid by Company and collected by DCL shall be the agreed upon contract rate of the Parties for the Services provided.
4. Tax. The rates and charges due from Company are exclusive of any tariffs, duties, or taxes imposed or levied by any government or governmental agency including, without limitation, federal, state, and local sales, use, value added, and personal property taxes, and Company shall be solely responsible for and agrees to pay on a timely basis any such tariffs, duties, or taxes, and all interest and penalties incurred in connection therewith (other than franchise and income taxes levied on DCL or assessed on its income for which DCL is responsible). DCL will notify Company of any claim for taxes asserted by applicable taxing authorities for which Company is responsible. The Parties agree that with respect to any claim arising out of a form or return signed by a Party, such Party will have the right to elect to control the response to, and settlement of, the claim, but the other Party will have reasonable rights to participate in the responses and settlements that are appropriate to its potential responsibilities or liabilities. If Company requests DCL to challenge the imposition of any tax and such taxing authority’s jurisdiction does not afford Company the opportunity to participate on its or their own behalf, Company will reimburse DCL for the reasonable attorney’s fees and expenses that it incurs in addition to any resultant tax liability that DCL may pay for which Company is responsible. Company will be entitled to any tax, fees, or interest refunds or rebates granted to the extent such refunds or rebates are of taxes that were paid by Company or were the responsibility of Company. In such event, DCL shall be entitled to reasonable fees and expenses it incurs in pursuing such refund or rebate. Upon request, the Parties will cooperate in obtaining and furnishing to each other certificates, direct pay permits, or other evidences of inapplicable of, or exemption from, any sales, excise, or other taxes or duties to which any Party may be entitled.
5. Shipping Documents. Company acknowledges that DCL is a transportation broker and as a result it will not be the party physically handling Company’s cargo or performing transportation. Company acknowledges that the Services will be subject to and governed by these Terms as well as any bills of lading, rate confirmations, tariffs, circulars, terms and conditions, or other shipping documents issued by DCL or the respective carriers (collectively, the “Shipping Documents”). Upon request of Company, DCL shall instruct the delivering motor carrier to obtain a delivery receipt from the consignee, showing the goods delivered, condition of the shipment, and the date and time of such delivery.
6. Third Parties. Unless underlying services are performed by persons or firms engaged pursuant to express written instructions from the Company, DCL shall use reasonable care in its selection of third parties. Advice by DCL that a particular person or firm has been selected to render services with respect to the goods shall not be construed to mean that DCL warrants or represents that such person or firm will render such services nor does DCL assume responsibility or liability for any actions(s) or inaction(s) of such third parties or its agents.
7. Company’s Goods. Company represents and warrants that it has: (a) submitted true, accurate, and correct information regarding itself, its goods, and the circumstances of its shipment; (b) sufficient right, title, and interest in and to the freight allowing it to tender for transportation; (c) not and will not tender any items prohibited by DCL or by the delivering motor carrier; and (d) not and will not violate any applicable law or regulation of any governmental authority with jurisdiction over it, its freight, or the transportation services it is requesting. All freight tendered by Company for transportation will be inspected by Company or its agent prior to loading to ensure that it will not leak, is clean, free from moisture, odor and infestation that could cause product damage and is otherwise safe and fit for the intended use.
8. Company’s Legal Compliance. Company represents and warrants that it does and will comply with all applicable laws, rules and regulations including but not limited to customs laws, import and export laws, and governmental regulation of any country to, from, through, or over which the shipment may be carried. In particular, Company represents and warrants that all property it tenders pursuant to these Terms, and its acts and omissions incident to such tender, shall always comply with applicable laws, regulations, and ordinances, including those related to the transportation of hazardous materials as defined in 49 CFR §§ 172.800 and 173 et seq. Company is obligated to inform DCL immediately if any such shipment constitutes hazardous materials. Company shall defend, indemnify, and hold DCL harmless from any fines, penalties, or liability of any kind, including reasonable attorney’s fees, arising out of Company’s failure to comply with this Section.
9. Reliance on Information Provided. Company acknowledges that it is required to review and confirm the accuracy of all information, documents, and declarations submitted to DCL, or to the underlying carriers. Company must immediately advise DCL or the delivering motor carriers of any errors, discrepancies, incorrect statements, or omissions. Company warrants that it will use reasonable care to ensure the correctness of all such information and it shall indemnify DCL and the carriers for any and all claims asserted, liabilities, or losses suffered by reason of its failure to disclose information or any incorrect or false information upon which DCL or the carriers reasonably relied. Company’s duties and obligations under this paragraph are affirmative and non-delegable.
10. Direct Cargo Claims.Broker’s or its delivering motor carrier’s liability in the event of cargo loss or damage arising from Broker’s direct performance of motor carrier services shall be determined consistent with 49 USC § 14706 regardless of the jurisdiction of performance or nature of commerce. Company’s measure of damages shall be the destination cost of the cargo lost or damaged subject to a limitation of $100,000 per truckload shipment unless a higher declared value was accepted by DCL in advance and commensurate rates and charges were paid by Company. The provisions of 49 CFR § 370.1 et seq. will govern the processing of claims for loss and damage as well as the exercise of salvage. Company must file direct cargo claims within nine (9) months following the date of delivery and any civil action within two (2) years from the date of DCL’s denial of all or a portion of the respective claim.
11. Indirect Cargo Claims. Company acknowledges and agrees that DCL shall bear no liability for cargo loss or damage arising from or related to the performance of motor carrier services by the delivering motor carriers. DCL may facilitate the claims filing process with the delivering motor carriers if Company submits to DCL within forty-five (45) days from the date of delivery a written claim fully supported by all relevant documentation including but not limited to the signed delivery receipt and listing the nature, cause, and specific amount of the claimed loss or damage. DCL may, in its sole discretion and without liability to Company, discontinue pursuit of claims with the delivering motor carrier if such claim is not resolved within sixty (60) days of receipt by DCL.
12. Cargo Insurance. Company is encouraged to obtain independent cargo insurance from a third party in order to protect against the risk of loss. DCL agrees to procure and maintain at its own expense, a surety bond or trust fund agreement as required by the Federal Motor Carrier Safety Administration (“FMCSA”) in the amount of $75,000 and furnish Company with proof of the same upon request.
13. Delay Claims. Company acknowledges and agrees that DCL and any delivering motor carriers will bear no liability for delay in delivery of Company’s property. In no event will DCL or any delivering motor carrier be responsible for any chargebacks or other penalties or assessments imposed by the consignor or consignee with respect to late deliveries.
14. Warehouseman’s Claims. DCL’s liability as a warehouseman for property stored in its actual or constructive possession shall be determined based upon its exercise of the care a reasonably careful warehouseman would exercise under like circumstances. Company acknowledges that some loss or damage to the property may occur during performance of storage services and as a result Company agrees that DCL shall be entitled to an annual shrinkage allowance of one-half percent (.5%) of the annual throughput cost basis. DCL’s maximum liability arising out of or related to loss or damage during performance of warehousing services shall not exceed, per occurrence, the lesser of: (a) replacement value of the property stored, or (b) $1.00 per pound of lost or damaged property, per handling unit. Company must submit all such claims to DCL no later than one-hundred eighty (180) days after Company became aware of such loss or damage. Any civil action must be commenced in a court of law within one (1) year from the date on which Company provides notice to DCL of such a claim.
15. Overcharge and Undercharge Claims. Company agrees to file any overcharge claims for payments tendered hereunder within one hundred eighty (180) days of the initial invoice date. DCL agrees to file any undercharge claim for additional Services not initially billed within one hundred eighty (180) days of the initial invoice date. Any such claim not made within the one hundred eighty (180) day period shall be deemed waived. All overcharge or undercharge claims shall be paid within thirty (30) days of the Parties agreement on payment of the overcharge or undercharge claim.
16. All Other Claims. DCL shall bear no liability to Company unless Company’s damages are directly caused by the sole negligence or willful misconduct of DCL or its employees in its performance of the Services. Company agrees that DCL’s liability under this Section shall not in any event exceed $25,000 per occurrence or $200,000 in any twelve (12) month period. Company shall notify DCL within sixty (60) days of learning of any claims other than those addressed in these Terms, and shall file any such claims with DCL within one hundred eighty (180) days from the date of initial notice. Any civil action must be commenced in a court of law within one (1) year from the date on which Company provides initial notice to DCL of such a claim.
17. DAMAGES EXCLUSION. IN NO EVENT SHALL DCL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING IN CONNECTION WITH THESE TERMS OR THEIR SUBJECT MATTER, OR any claims or demands against COMPANY by a third party arising out of or connected with the Services, REGARDLESS OF THE THEORY OF LIABILITY GIVING RISE TO SUCH DAMAGES, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, AND REGARDLESS OF WHETHER DCL WAS ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY REPRESENTS THAT IT IS SOPHISTICATED IN THE COMMERCIAL MATTERS CONTEMPLATED BY THESE TERMS AND THAT IT HAS RECEIVED ADVICE FROM COUNSEL PRIOR TO EXECUTION. EACH PARTY ACCEPTS THAT THE PROVISIONS OF THESE TERMS RELATED TO LEGAL LIABILITY ARE ECONOMICALLY SOUND AND CONSTITUTE A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THESE TERMS. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
18. Lien Rights. DCL shall have a general and continuing lien on any and all property and documents relating thereto of Company coming into DCL’s actual or constructive possession, custody, or control, or enroute, which lien shall survive delivery, for all charges, expenses or advances owed to DCL with regard to the shipment on which the lien is claimed, a prior shipment(s) and/or both. Transportation charges and related payments advanced by DCL shall be deemed paid in trust on behalf of Company and treated as pass through payments made on behalf of Company for which DCL is acting as a mere conduit. DCL shall provide written notice to Company of its intent to exercise such lien, the exact amount of monies due and owing, as well as any on-going storage or other charges. Company shall notify all parties having an interest in its shipment(s) of DCL’s rights or the exercise of such lien. Unless, within thirty (30) days of receiving notice of lien, Company 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 DCL, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, DCL 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 Company.
19. Force Majeure. In the event performance by DCL or its delivering motor carrier is affected by any cause beyond reasonable control, including without limitation, fire, labor strife, riot, war, weather conditions, acts of the public enemy, acts of God, acts of terrorism, acts of government authority, pandemic or health crisis, local or national disruptions to transportation networks or operations, fuel shortages, governmental regulations, or requisition for national defense, then the performance of all affected obligations required under these Terms or otherwise shall be suspended during the continuance of such interruption, and Company shall receive reasonably prompt notice of such interruption. Such period of suspension shall not in any way invalidate these Terms, but on resumption of operations, any affected performance shall be resumed. No liability shall be incurred by DCL or its carrier for damages resulting from such suspensions.
20. Indemnity Obligations. Company shall indemnify, defend, and save DCL, its employees, agents, and carriers harmless from and against, and shall pay and reimburse, any and all liability, claims, loss, costs, fines, penalties, expenses (including attorney’s fees), judgments, or demands on account or damage of any kind whatsoever asserted by third parties, including but not limited to personal injury, property damage, cargo damage, or any combination thereof, suffered or claimed to have been suffered by any person or persons, arising out of Company’s acts and omissions to the extent such claim is directly and proximately caused by: (a) the negligence or intentional misconduct of Company; (b) Company’s or its employees’ or agents’ violation of applicable laws or regulations; (c) Company or its employees’ or agents’ breach of these Terms; or (d) Company’s failure to provide complete and accurate instructions regarding cargo or the indemnitee’s reliance on Company’s instructions for handling. The foregoing obligations shall not apply to the extent such liability, claims, or loss are the result of the negligence or other wrongful conduct of DCL. In the event that such claims, liabilities, losses, damages, fines, penalties, payments, costs and expenses (including without limitation, reasonable attorney’s fees) are caused by the joint and concurrent negligence or other fault of the Parties, or the Parties and a third-party, the indemnity obligations for such claims, liabilities, losses, damages, fines, penalties, payments, costs, and expenses shall be borne by each Party in proportion to its degree of negligence or other fault.
21. Notice. With the exception of Rate Confirmation Sheets, which may be exchanged via email, all notices or other communications required or permitted by these Terms shall be effective upon receipt; shall be in writing; and shall be personally delivered, or mailed by registered or certified mail, return receipt requested, or sent by an overnight delivery service which provides proof of delivery, or sent by telecopy with a duplicate copy sent by first class mail, postage prepaid. Notices to Company may be delivered to the contact information maintained in DCL’s files or as shown on any applicable Shipping Document, unless otherwise agreed between the Parties. Notices to DCL shall be delivered to Direct Connect Logistix, Inc., 314 Michigan St., Indianapolis, IN 46202.
22. Confidentiality. Each Party shall protect and keep in the strictest confidence any confidential or proprietary information of the other Party using the same degree of care, but not less than a reasonable degree of care, that the receiving party uses to protect its own confidential information of like nature, to prevent the unauthorized use, disclosure, dissemination, or publication of such Confidential Information. For purposes of these Terms, “Confidential Information” shall include any non-public information (including the terms, conditions, and existence of these Terms) of or relating to DCL, including, but not limited to, the business plans, strategies, forecasts, analyses, financial information, technology information, trade secrets, and other proprietary information or data. The receiving Party shall use the Confidential Information of the disclosing Party only for the express purposes set forth in these Terms. The receiving Party shall not have any obligation, however, to preserve the confidentiality of any such information to the limited extent that it: (a) is in the public domain or generally available to the public; (b) was in the possession of or disclosed to the receiving Party prior to the date hereof by a third party, free of any obligation to keep the same confidential; (c) is lawfully acquired by the receiving Party from a third party under no obligation of confidentiality to the disclosing Party; or (d) is required to be disclosed by the receiving Party under law or court order; provided, however, that the receiving Party shall give prompt written notice thereof to the disclosing Party. The Parties further agree and acknowledge that a monetary remedy for a breach of this Section may be inadequate and that such breach may cause the disclosing Party irrevocable harm. In the event of a breach, the disclosing Party will be entitled, without the posting of a bond and in addition to any monetary damage it may subsequently prove, to seek temporary and permanent injunctive relief, including temporary restraining orders, preliminary injunctions, and permanent injunctions. The provisions of this Section shall survive completion of Services or termination of any applicable agreement.
23. Reservation of Rights. A Party’s failure at any time to require performance by the other Party of any provisions of these Terms shall in no way affect the right to require such performance at any time thereafter. A Party’s waiver of any of its remedies afforded hereunder or by law is without prejudice and shall not operate to waive any other remedies that such Party shall have available to it, nor shall such waiver operate to waive such Party’s right to any remedies due to a future breach, whether of a like or different character.
24. Independent Contractor. It is understood that this is not an agreement of joint venture, partnership, or employment of DCL or of any of DCL’s employees by Company, and that DCL, any third party service providers, such as a motor carrier, and Company are each independent contractors. DCL and Company each represent that they are entirely independent, not economically dependent upon one another, and that there is no functional integration of the Parties’ respective operations.
25. Entire Agreement. These Terms will apply to all work DCL performs on behalf of Company excep to the extent the Parties have otherwise agreed in writing. If DCL performs Services which are not specifically addressed by these Terms, Company agrees such Services subject to the terms and conditions herein including limitations of liability. Except as otherwise specifically stated, no modification, amendment, or addendum hereto shall be of any force or effect unless reduced to writing and signed by the Parties and expressly referred to as being modifications of these Terms. If any provision of these Terms are held to be unenforceable, the remaining provisions will remain in effect and the Parties will negotiate in good faith a substantively comparable and enforceable provision to replace the unenforceable provision. The order of priority in the event of conflict shall be: (a) any written and signed agreement between the Parties; (b) the Shipping Documents; (d) these Terms; and (e) any other transactional documents issued and accepted between the Parties.
26. Applicable Law.These Terms and the rights or obligations of the Parties are hereby governed by the laws of the State of Indiana to the extent not inconsistent with applicable federal laws, without regard to any conflict of laws principles. The Parties irrevocably submit to the exclusive jurisdiction of the Courts of Marion County, Indiana. Each Party hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any suit, action, or proceeding relating to these Terms, and further irrevocably waives any claim that such venue is not a convenient forum for any such suit, action, or proceeding. Should any litigation be commenced between the Parties concerning any provision of these Terms, the rights and duties of any entity in relation thereto, or the interpretation of any provision hereof, each Party shall pay and be responsible for its own attorney's fees and costs.