SHIPPER TERMS AND CONDITIONS
By tendering Goods to Hometown Logistics, You (Shipper, Customer, or You) agree to be bound by these Terms and Conditions. In accordance with 49 U.S.C. Section 14101(b)(1) You and Hometown Logistics expressly waive any and all rights and remedies that each may have under 49 U.S.C. §§ 13101 through 14914 that are contrary to specific provisions of these Terms and Conditions.
1. Parties. You are a shipper and/or consignee of certain general commodities (“Goods”) that You wish to have transported by motor carriers (“Carriers”) within the United States. Hometown Logistics is a transportation broker licensed by the Federal Motor Carrier Safety Administration to arrange for the transportation of Goods by Carriers. Hometown Logistics is not a freight forwarder, common carrier, or contract carrier.
2. Services. Hometown Logistics’ responsibility is limited to arranging for, but not actually performing, transportation of the Goods. These Terms and Conditions apply to all transportation services arranged by Hometown Logistics on Your behalf.
3. Independent Contractors.The relationship between You and Hometown Logistics is and will remain that of independent contractors and no employer/employee or principal-agent relationship exists or is intended.
A. Hometown Logistics will invoice You for its services based on these Terms and Conditions and negotiated rates and charges.
B. You agree to pay Hometown Logistics within 30 calendar days of invoice date without deduction or setoff. Hometown Logistics may assess a service charge of 1 ½% per month (or the highest lawful rate, if less) on any late payments.
C. If You do not pay the invoiced amounts, Hometown Logistics may commence a civil action to recover such invoiced amounts within 24 months of delivery or tender of delivery of the shipments involved. In the event that Hometown deems it necessary to use the services of a collection agency or attorney to collect any amounts due, You agree to pay all reasonable collection costs, attorney fees, and court costs.
D. You agree that Hometown has the right to pursue reimbursement for any unpaid freight charges from the receiver or shipper if payment from you remains outstanding for more than 30 days past the date of invoice. You further agree that this right supersedes any contrary provision contained in any contract or bill of lading.
5. Bills of Lading and Other Shipping Documents. Your insertion of Hometown Logistics’ name on any bill of lading or shipping document will be for Your convenience only and will not change Hometown Logistics’ status as a broker. The terms and conditions of any documentation used by You, any shipper, or a Carrier will not supplement, alter, or modify the terms of these Terms and Conditions.
6. Loss, Damage, or Delay of the Goods
A. Hometown Logistics is not liable for loss, damage, or delay in connection with the transportation of Goods. If requested by You and agreed to by Hometown Logistics, Hometown Logistics may assist You in filing and/or processing claims with Carriers.
B. Carriers are not liable for the following: (1) damage to the Goods to the extent due to packaging, loading, unloading, blocking, bracing or securing of the Goods (unless Carrier has provided loading or unloading services at Your request, in which case such Carrier may be liable for cargo damage caused by such loading or unloading services), (2) inherent vice or defect in the Goods, including rusting of metals, swelling of wood caused by humidity, moisture or condensation, or deterioration of perishable products; (3) an act of God or the public enemy; (4) any act or default of You, consignee, consignor, or beneficial owner of the Goods; (5) any act taken under authority of law; or (6) any act of war or terrorism.
C. Carrier’s liability for cargo loss, damage, and delay will be the least of the following:
(1) The actual value of the Goods
(2) $10 per pound or
(3) $100,000 per shipment
D. Any claim for cargo loss, damage, or delay must be filed against the responsible Carrier within 9 months of the date of delivery of Goods, or in the case of non-delivery, within 9 months of the date delivery should have been made. Notice to Hometown Logistics does not constitute filing of claim with a Carrier. Any suit or other legal action to recover for cargo loss, damage, or delay, must be commenced against a Carrier no later than 2 years after declination of the cargo claim by the Carrier.
7. Consequential Damages. Under no circumstances will Hometown Logistics or Carrier be liable for consequential, indirect, incidental, or punitive damages of any kind.
8. Your Obligations.
A. You are responsible for ensuring that Goods are properly and safely loaded, supported, blocked, braced, and secured. You will be responsible for expenses arising out of any load shift that occurs during transportation due to improper or insufficient loading, blocking, or bracing.
B. You must provide necessary shipping instructions and properly identify all Goods in the bill of lading or other shipping instructions. You must not tender any restricted commodities, including but not limited to hazardous materials and waste, oversize or overweight shipments, coiled or rolled products or commodities requiring protection from heat or cold, without properly identifying such shipments and making necessary prior arrangements for transportation.
C. Unless You have requested that Hometown Logistics arrange for a Carrier to provide driver count services before dispatch and the Carrier performs such driver count services, You are responsible for properly counting and recording the number of pieces transported and applying a protective seal to the loaded equipment.
D. You are responsible for checking all empty containers or trailers tendered for loading and rejecting any equipment that is not in apparent suitable condition to protect and preserve the Goods during transportation.
E. If You request that Hometown Logistics arrange for equipment to be dropped at a location for Your convenience and left unattended by Carrier, You and Your consignors or consignees will not lose, damage, or misuse the equipment and You will pay for loss or damage to the equipment occurring during or as a result of such custody, control, possession or use of the equipment.
F. You must comply with all applicable laws and regulations governing the safe and secure transportation of food products that will be ultimately consumed by humans or animals (“Food Shipments”), including those required by local, provincial, state and federal laws, regulations, ordinances and rules including, but not limited to, the Food Safety Modernization Act (21 U.S.C. § 2201, et. seq.), the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 341, et seq.) (“FD&C Act”), the Sanitary Food Transportation Act (49 U.S.C. 5701, et seq.), the U.S. Food and Drug Administration’s Final Rule on the Sanitary Transportation of Human and Animal Food (21 C.F.R. § 1.900, et seq.) and all applicable U.S. Department of Agriculture and Food Safety and Inspection Service regulations (collectively, the “Food Safety Laws”). You represent and warrant that any Food Shipments offered for transportation pursuant to the Agreement are tendered in safe condition for human or animal consumption, as applicable.
G. If a Food Shipment is covered under any of the Food Safety Laws that prohibit the sale or distribution of unsafe or “adulterated” food, You must specify the applicable body or bodies of law, statutes and/or regulations on face of the governing bill of lading for the shipment. At the time of booking, and prior to loading the goods, You must further specify in the booking request and on the face of the governing bill of lading all instructions to be followed by the motor carriers to maintain the safety of the food, including, without limitation, all temperature control requirements and temperature control documentation requirements, including an operating temperature for the transportation and, when necessary, the pre-cooling phase, all sanitation requirements and sanitation documentation requirements for the Food Shipment, including those for the motor carriers’ vehicle and transportation equipment, any design specifications and cleaning procedures (“Written Instructions”). Broker will assist You in providing any Written Instructions to the motor carriers transporting Your food cargo. You, including Your consignors and consignees, shall permit the performing motor carrier to verify the temperature of Food Shipments prior to acceptance of tender and upon delivery at destination.
H. You acknowledge and agree that the definition of “adulterated” as applicable to Food Shipments shall be that provided in the FD&C Act (21 U.S.C. §§ 342(a)(i)(4), 342(i)). In the event of apparent adulteration of any portion of a Food Shipment, You warrant that You will, at Your own expense, obtain a reliable inspection of the Food Shipment by a qualified expert as soon as possible after delivery. You acknowledge that the Carrier will bear no liability for Food Shipments wrongfully refused without a timely and documented determination by a qualified expert of adulteration. You additionally acknowledge that if You fail to provide written instructions, as required above, the Carrier will not be liable for loss or damage to Food Shipments deemed adulterated.
I. You warrant that You will not directly or indirectly interfere with, or attempt to adversely influence, the Carrier’s safe operation of equipment including performance pursuant to the federal hours of service regulations.
9. Hazardous Materials. You must provide Hometown Logistics with advance notice of the proposed shipment of any hazardous material, as defined in 49 U.S.C. §5101, et seq. (“Hazardous Material”) and provide a copy of the Material Safety Data Sheet for that Hazardous Material. You will indemnify, defend and hold harmless Carriers and Hometown Logistics, their officers, employees, agents and insurers, against all claims, liabilities, losses, fines, legal fees and other expenses arising out of contact with, exposure to, or release of any Hazardous Material, including without limitation fines or expenses relating to the removal or treatment of that Hazardous Material or any other remedial action pertaining to that Hazardous Material under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601, e seq. as amended (“CERCLA”), The Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq, as amended (“RCRA”) or any comparable state law.
10. Indemnification. You must defend, indemnify and hold Hometown Logistics, Hometown Logistics’ employees and agents, and Carriers harmless against any losses caused by or resulting from (i) Your or Your employees’ or agents’ negligence or intentional misconduct, (ii) Your breach of these Terms and Conditions, or (iii) Your or Your employees’ or agents’ violation of applicable laws or regulations. You shall also indemnify Hometown Logistics from any attempts to recover from Hometown Logistics by Your insurance carrier or any other party in regards to claims for loss, damage, or delay to Goods. The obligation to defend includes payment of all reasonable costs of defense, including attorney fees, as they accrue.
11. Information Systems. Any management information system or computer hardware or software used or supplied by Hometown Logistics in connection with the Services is and will remain Hometown Logistics’ exclusive property. All management information systems and related computer software and documentation used or supplied by Hometown Logistics are proprietary to Hometown Logistics, and You will treat all such systems as confidential and not copy, use, or disclose them to third parties without Hometown Logistics’ prior written consent, except as required by law.
12. Jurisdiction and Venue
A. These Terms and Conditions are governed by and construed in accordance with the applicable federal laws of the United States, or, alternatively, and depending on jurisdiction, the laws of the State of Indiana.
B. The parties agree to jurisdiction and venue in a United States Federal District Court located in Indiana, or if federal jurisdiction is not available, then in a State Court located in Indiana.
13. Less Than Truckload (LTL) Freight. Where Hometown provides LTL services, the following additional terms and conditions apply and supersede and control over any conflicting provisions of these Terms and Conditions.
A. Tariff Applicability. You acknowledge and agree that LTL shipments will be subject to those Carrier tariff terms applicable based upon the nature of services requested and the Goods tendered including, without limitation, those tariff provisions required to rate shipments or adjudicate Carrier liability for the same.
B. Cargo Claims. If less than a full truckload of Goods is being transported, Carrier liability for loss or damage to Goods shall be subject to the lowest of $100,000 per shipment, $10 per pound times the weight of the Goods lost or damaged, or the lowest liability provided in the National Motor Freight Classification.
14. Force Majeure. If performance by one Party is affected by any condition beyond the reasonable control of such Party, the performance of obligations under the Terms and Conditions (other than Your obligation to pay for Services performed) affected by such condition will be suspended during the continuance of such condition. The Carriers engaged by Hometown Logistics will be permitted an extension period equal to the period of suspension in order to complete shipments adversely affected by the suspension. Neither Party will incur any liability for damages resulting from such suspensions.
15. Notice. Any notices and other communications required or permitted under the Terms and Conditions must be in writing and be (1) delivered personally, (2) sent by facsimile or e-mail transmission if confirmed by notice sent by one of the other notice methods permitted in this paragraph, (3) sent by nationally recognized overnight courier guaranteeing next business day delivery, or (4) mailed by registered or certified mail (return receipt requested), postage prepaid, to Hometown Logistics at the following addresses (or at such other addresses as are specified by like notice):
Hometown Logistics LLC
2601 Fortune Circle East Suite 200A
Indianapolis, IN 46241
All such notices and other communications will be deemed to have been given and received (1) in the case of personal delivery, on the date of such delivery, (2) in the case of facsimile or e-mail transmission that is confirmed by notice sent on the same day by one of the other methods permitted, on the date of transmission if sent on a business day (or if sent on other than a business day, on the next business day after the date sent), (3) in the case of delivery by nationally recognized overnight courier, on the business day following dispatch if sent by guaranteed next day delivery, or (4) in the case of mailing, on the third business day following such mailing.
A. As part of the business relationship between You and Hometown Logistics, either Party may be in or come into possession of information or data that constitutes trade secrets, know-how, confidential information, marketing plans, pricing, or anything else otherwise considered proprietary or secret by the other (“Confidential Information”). In consideration of the receipt of such Confidential Information and potential business, each Party agrees to protect and maintain such Confidential Information in the utmost confidence, to use such Confidential Information solely in connection with their business relationship, and, to take all measures reasonably necessary to protect the Confidential Information.
B. You agree that Hometown Logistics’ costs for services is confidential and need not be disclosed to You. You specifically waive any rights You may have under 49 CFR § 371.3.
17. Assignment/Modification of Agreement. Neither Party may assign or transfer these Terms and Conditions, in whole or in part, without the prior written consent of the other Party.
18. Severability/Survivability. In the event that the operation of any portion of these Terms and Conditions results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the Parties agree that such portion or provision shall be severable and that the remaining provisions of the Agreement shall continue in full force and effect. The representations and obligations of the Parties shall survive the termination of these Terms and Conditions for any reason.
19. Nonwaiver. Failure of either Party to insist upon performance of any of the terms, conditions or provisions of these Terms and Conditions, or to exercise any right or privilege herein, or the waiver of any breach of any of the terms, conditions or provisions of these Terms and Conditions, shall not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred.
20. Notices. Unless the Parties notify each other in writing of a change of address, any and all notices required or permitted to be given under these Terms and Conditions shall be made in writing and shall be delivered via fax with machine imprint on paper acknowledging successful transmission or email with confirmed receipt), and shall be effective when so delivered.
21. Entire Agreement. These Terms and Conditions constitute the entire agreement intended by and between the Parties and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements, and understandings, whether oral, written, expressed or implied, with respect to the subject matter hereof. The Parties also intend that these Terms and Conditions may not be supplemented, explained, or interpreted by any evidence of trade usage or course of dealing. All subsequent amendments or modifications shall be in writing and signed by the Parties.