These Terms of Service (“Terms of Service” or “Agreement”) are effective by and between Freightwell Logistics, LLC, a Texas limited liability company (“Broker”) and Shipper (as defined below).
A.     Broker is a federally-licensed freight broker as deﬁned by 49 USC §13102(2) under authority granted by the Federal Motor Carrier Safety Administration (“FMCSA”) of the U.S. Department of Transportation.
B.     Broker provides the service of arranging the transportation of cargo between Shippers and Motor Carriers (the “Service”). Broker performs the Services via various forms of digital communication, including but not limited to Broker’s proprietary website and/or App.
C.     For purposes of this Agreement, and unless otherwise indicated, these terms shall have the following meanings:
(I)     “Broker” shall mean Freightwell Logistics, LLC, a Texas limited liability company.
(II)     “Carrier” shall mean a Motor Carrier (defined below) who engages Broker to perform the Service (defined below).
(III)     “Customer” shall mean any individual or entity (Shipper or Carrier) that engages Broker to perform the Service.
(IV)     “Customer Content” shall mean any information and data provided by a Customer to Broker or uploaded onto Broker’s digital platform.
(V)     “Freight Charge” shall mean the freight charge quoted to Shipper on the Service to ship a specific Load.
(VI)     “Load” shall mean a specific shipment.
(VII)     “Load Information” shall mean the information provided by Shipper to Broker to complete the transportation of a Load by Carrier.
(VIII)     “Motor Carrier” shall have the meaning ascribed to that term under 49 USC §13102(14).
(IX)     “Shipper” shall mean the party entering into this Agreement who meets the definition of shipper under 49 USC §13102(13).
(X)     “Service” has the meaning given to it under Preliminary Statement “B” above.
In consideration of the above statements, Broker and Shipper agree as follows:
(a)     . Broker’s digital platform shall provide detailed instructions to Shipper regarding the use of the Service. Such instructions may be modified on the digital platform from time to time at Broker’s discretion. In the absence of a digital platform such as a proprietary website and/or App (whether due to such digital platform being under development or such platform being temporarily disabled), Broker may use telephone, email, videoconference, and/or other means of communication to perform the Service. Broker reserves the right, at any time, to modify, suspend, or discontinue its digital platform or any part thereof with or without notice. Carrier agrees that Broker will not be liable to Carrier or to any third party for any modiﬁcation, suspension, or discontinuance of its digital platform.
(b)     . For each Load, Shipper will pay Broker (or shall pay a third-party as directed by Broker) the Freight Charge. Payment is due 30 days from the official confirmation by Broker of the acceptance by Carrier of the applicable Load. The Freight Charge is non-refundable.
(c)     . All past-due amounts shall accrue interest at the rate equal to the lesser of either: (a) the maximum rate permitted by applicable law or, (b) the rate of ten percent (10%) per annum. Shipper agrees to pay all court costs, reasonable attorney’s fees and expenses, and expenses related to third-party collection efforts related to Broker’s enforcement of its rights under this Section.
(d)     . All charges are facilitated through a third-party payment processing service. Broker may replace its third-party payment processing services from time to time without prior notice to Shipper.
(e)     . Customer agrees to use the digital platform in a manner and place that is safe and will not cause accidents.
Customer Content shall be governed by the following provisions:
(a)     . Customer grants Broker a worldwide, perpetual, irrevocable, and nonexclusive license to use Customer Content in all formats now known or hereafter devised, including the right to create derivative works from such Customer Content.
(b)     . Customer acknowledges that all of the intellectual property rights in Broker’s platform are owned by Broker. Any use of Broker’s platform not specifically authorized under this Agreement is strictly prohibited. Customer warrants that it shall not use Broker’s platform with the intent of reverse engineering the platform to build a competing service.
(c)     . Customer acknowledges that it is solely responsible for obtaining its own electronic devices required to access Broker’s digital platform and/or communicate with Broker and other Customers using the Service. Customer acknowledges that Broker is not responsible for the payment or reimbursement of Customer’s internet charges, network coverage charges, SMS/MMS text message rates, or any other third-party charges to Customer that Customer may incur in connection with the use of the Service. Customer acknowledges that Broker cannot guarantee the functionality of the devices and data networks used by Customer.
(a)     Broker shall comply with all insurance and bonding requirements imposed upon it by law, including but not limited to all surety bond or trust fund requirements.
(b)     Shipper is advised but not required to obtain any first-party insurance to cover any anticipated losses of cargo.
(a)     Shipper represents that it has necessary rights to ship such Load.
(b)     Shipper shall disclose all information that is necessary for Broker to comply with all applicable laws and regulations, including but not limited to its obligation to provide an accurate description of the cargo.
(c)     Shipper shall use best efforts to secure the Load with Carrier and to inspect Carrier’s trailer for cleanliness, odor, leaks, or other hazardous conditions. Shipper acknowledges that it has the right to refuse loading of Carrier’s trailer if it has concluded that such trailer presents a hazard.
(d)     Shipper shall not use the Service to ship hazardous wastes of any kind, including, solid, liquid, or hazardous, regardless of whether they meet the deﬁnition in 40 C.F.R. §261.1 et. seq.
5.     Shipper shall not insert Broker’s name or identifying information on any receipt, bill of lading, manifest, or other shipping document.
(a)     Shipper acknowledges that Carrier’s liability for lost, destroyed, damaged or delayed Loads is governed by 49 USC §14706 (“the Carmack Amendment”) regardless of whether such standard would apply in the absence of this Agreement.
(b)     Broker may assist Shippers with claims against Carriers for lost, damaged, delayed or destroyed cargo, and Broker may likewise ﬁle such claims directly on behalf of Shipper. Shipper and Broker shall have sixty (60) days from the date of delivery of any Load (or, if no delivery, then not less than sixty (60) days months from the date on which delivery should have occurred) during which to ﬁle claims. Subject to Section 18, Shipper and Broker shall have not less than one (1) year from the date of denial of all or any part of any such claim during which to initiate a legal proceeding with respect to such claim. Carrier will pay, deny or oﬀer to settle any claim hereunder within thirty (30) days of submission. Otherwise, 49 C.F.R. Part 370 will govern processing of claims.
(c)     Shipper shall have sole discretion as to whether to allow salvage of any damaged Load. If no salvage is allowed, Carrier shall not be entitled to a credit for salvage value. Any expenses incurred in preparation of goods for salvage shall be borne by the party at fault for the damaged Load.
(d)     Any attempt to limit Carrier’s liability for lost, destroyed, or delayed Loads shall be deemed null and void. Exclusions in Carrier’s insurance coverage shall not exonerate Carrier from such liability.
7.     Carrier and Carrier’s drivers are contractually to Broker to comply with any and all instructions regarding the handling of the Load which are communicated to Carrier by Shipper and/or Broker, whether pursuant to the Service, on the applicable bill of lading, or via other documentation provided to the Carrier.
(a)     . Shipper agrees to defend, indemnify and hold Broker (and Broker’s oﬃcers, employees, agents, and assigns) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of Shipper’s performance of this Agreement, to the extent such damages, claims or losses are caused by Shipper or Shipper’s employees’ or agents’ negligence or intentional conduct. Broker reserves the right, at Shipper’s expense, to assume the exclusive defense and control of any matter for which Shipper is required to indemnify Broker. Shipper agrees to cooperate in good faith with Broker in the defense of such claims. Shipper agrees not to settle any matter without the prior written consent of Broker. Broker will use reasonable eﬀorts to notify Shipper of any such claim, action or proceeding upon becoming aware of it.
(b)     . Shipper agrees to defend, indemnify and hold Carrier (and their oﬃcers, employees, and agents) harmless, including costs and attorneys’ fees, from any and all damages, claims or losses arising out of Shipper’s performance of this Agreement, to the extent such damages, claims or losses are caused by Shipper or Shipper’s employees’ or agents’ negligence or intentional conduct.
Any notice required by or permitted under this Agreement must be in writing. Any notice required by this Agreement will be deemed to be delivered (whether actually received or not) when deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this contract. Notice may also be given by regular mail, personal delivery, courier delivery, facsimile or electronic transmission, or other commercially reasonable means and will be effective when actually received. Any address for notice may be changed by written notice delivered as provided herein. Copies of each notice must be given by one of these methods to the attorney of the party to whom notice is given. Accordingly, notices are to be delivered to the parties at the following addresses:
10.     Shipper acknowledges that Broker is not a Motor Carrier and that Broker does not take possession, custody or control of any cargo. Shipper acknowledges that Broker is not subject to the regulatory or legal requirements or liability of a Motor Carrier. Broker has no responsibility or liability for any transportation or motor carrier services provided to any Shipper or any other party using the Services. Shipper acknowledges that Broker will never be in possession of any cargo being transported in connection with use of the Service, and that Broker will not be responsible or have any role in the securement of cargo for transportation.
11.     Shipper acknowledges that this Agreement does not make Shipper an agent, legal representative, joint venture, or partner of Broker for any purpose. Shipper acknowledges and agrees that Shipper is an independent contractor of Broker and that Shipper is in no way authorized to make any contract, warranty or representation on behalf of Broker, or to create any obligation express or implied on behalf of Broker. As an independent contractor, Shipper acknowledges that it is not entitled to any plans, distributions, or beneﬁts extended by Broker to its employees.
12.     If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
13.     Subject to Section 1(a), this Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto.
14.     Shipper may not assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of Broker. Broker is hereby authorized to assign, whether in writing or orally, or encumber its rights or obligations under this Agreement without the prior consent of Shipper.
15.     This Agreement will remain in full force and effect until the earliest to occur of the following: (i) Shipper ends its use of the Service; (ii) Broker has terminated this Agreement with Shipper due to Shipper’s material breach of this Agreement or poor performance under this Agreement as determined in Broker’s sole discretion.
16.     During the term of this Agreement, and for a period of one (1) year from its termination, Shipper shall neither initiate nor accept any direct or indirect business relationship with any Carrier where Loads transported by such Carrier were ﬁrst transported pursuant to the Service, or in connection with use of the Service.
17.     This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns.
(a)     In the event of a dispute arising out of this Agreement related to claims by or against Broker, a party’s recourse shall be exclusively settled through binding and conﬁdential arbitration. Arbitration shall be subject to the Federal Arbitration Act. The arbitration shall be conducted before one arbitrator from the Transportation ADR Council, Inc. (“TAC”). Arbitration proceedings shall be conducted under the rules of the TAC.
(b)     Upon agreement of the parties, arbitration proceedings may be conducted outside of the administrative control of the TAC. The decision of the arbitrator shall be binding and ﬁnal and the award of the arbitrator may be entered as judgment in any court of competent jurisdiction. The prevailing party shall be entitled to recovery of costs, expenses and reasonable attorney fees as well as those incurred in any action for injunctive relief, or in the event further legal action is taken to enforce the award of the arbitrator.
(c)     Arbitration proceedings shall be conducted in El Paso County, Texas, or at such place as mutually agreed upon in writing by the parties. At any time, either party may apply to a court of competent jurisdiction in El Paso County, Texas for injunctive or other equitable relief. In the event that either party is granted equitable relief, the party against whom judgment is entered shall be liable for all costs and expenses incurred by the prevailing party including, but not limited to, reasonable attorney fees. This paragraph shall not apply to enforcement of an award of arbitration.
19.     This Agreement shall be governed and construed in accordance with the laws of the State of Texas.
20.     A facsimile copy of this Agreement or a copy of this Agreement transmitted by e-mail containing the signature of any party shall be accepted as the original and shall be binding upon the signing party to the same extent as would a copy of this Agreement containing the party’s original signature. Upon request of a party, a party signing and delivering this Agreement by facsimile or e-mail shall deliver to the requesting party a copy hereof containing the signing party’s original signature. Any signatures of the parties may be obtained in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
21.     THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE." BROKER EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. BROKER MAKES NO WARRANTY THAT THE SERVICE: (A) WILL MEET SHIPPER’S REQUIREMENTS OR EXPECTATIONS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE; OR (D) RESULT IN ANY REVENUE, PROFITS, OR COST REDUCTION. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BROKER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. SHIPPER AGREES THAT THE ENTIRE RISK ARISING OUT OF SHIPPER’S USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH SHIPPER, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. BROKER’S SERVICES MAY BE USED BY SHIPPER TO REQUEST AND SCHEDULE TRANSPORTATION SERVICES WITH OTHER CUSTOMERS, BUT SHIPPER AGREES THAT BROKER HAS NO RESPONSIBILITY OR LIABILITY TO SHIPPER RELATED TO THE SERVICES OR ANY TRANSPORTATION SERVICES COORDINATED OR OFFERED OR PURCHASED BY SHIPPER THROUGH THE SERVICES OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
22.     SHIPPER ASSUMES ALL LIABILITY AND RISK OF USING THE SERVICES AND COORDINATING TRANSPORTATION SERVICES. BROKER HAS NO OBLIGATION TO MONITOR DISPUTES BETWEEN SHIPPER AND OTHER CUSTOMERS. BROKER DISCLAIMS ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER CUSTUMERS (INCLUDING UNAUTHORIZED USERS). BROKER ONLY OFFERS TECHNOLOGY THAT ENABLES SHIPPERS TO COORDINATE TRANSPORTATION SERVICES. BROKER IS NOT A CARRIER. BROKER IS NOT INVOLVED IN THE ACTUAL TRANSPORTATION OF CARGO. AS A RESULT, BROKER HAS NO CONTROL OVER THE QUALITY OR SAFETY OF ANY VEHICLE, CARGO OR OF THE TRANSPORTATION THAT OCCURS AS A RESULT OF THIS SERVICE; NOR DOES BROKER HAVE ANY CONTROL OVER THE TRUTH OR ACCURACY OF CUSTOMER INFORMATION LISTED ON BROKER’S DIGITAL PLATFORM. BROKER RESERVES THE RIGHT TO CHANGE ANY AND ALL CONTENT, SOFTWARE AND OTHER ITEMS USED OR CONTAINED ON ITS DIGITAL PLATFORM AT ANY TIME WITHOUT NOTICE.
23.     THE DIGITAL PLATFORM MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. BROKER ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS. BROKER IS NOT RESPONSIBLE FOR ANY TECHNICAL MALFUNCTION OR OTHER PROBLEMS OF ANY TELEPHONE NETWORK OR SERVICE, COMPUTER SYSTEMS, SERVERS OR PROVIDERS, COMPUTER OR MOBILE PHONE EQUIPMENT, SOFTWARE, FAILURE OF EMAIL OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY SITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO A CUSTOMER’S COMPUTER, MOBILE PHONE, OR OTHER HARDWARE OR SOFTWARE, RELATED TO OR RESULTING FROM USING BROKER’S DIGITAL PLATFORM.
(a)     BROKER SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BROKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b)     BROKER SHALL NOT BE LIABLE AND SHALL HAVE NO RESPONSIBILITY TO MAKE ANY FILINGS WITH ANY GOVERNMENTAL ENTITIES, INCLUDED BUT NOT LIMITED TO ANY AUTOMATED EXPORT SYSTEM FILINGS OR FILING SWITH ANY CUSTOMS SERVICE. BROKER SHALL NOT BE RESPONSIBLE FOR OR HAVE ANY LIABILITY RELATED TO ANY DELAYS CAUSED BY BORDER CROSSINGS.
(c)     BROKER SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) SHIPPER’S USE OF OR RELIANCE ON THE DIGITAL PLATFORM OR SHIPPER’S INABILITY TO ACCESS OR USE THE DIGITAL PLATFORM; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN SHIPPER AND ANY OTHER CUSTOMER OR ANY THIRD PARTY. BROKER SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND BROKER’S REASONABLE CONTROL. IN NO EVENT SHALL BROKER’S TOTAL LIABILITY TO SHIPPER IN CONNECTION WITH THE SERVICES AND TRANSPORTATION SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE BROKERAGE FEES PAYABLE TO BROKER.