TERMS AND CONDITIONS OF SERVICE
Definitions
“HGL” means HG Logistics LLC, an Ohio limited liability company. “Customer” means the individual, corporation or other entity which has retained HGL to perform property brokerage Services, as well as all agents, representatives and subcontractors of said individual, corporation or entity, including, but not limited to all shippers and consignees of the Shipment being transported, or the insurers thereof, and any other party claiming a right or interest in the Shipment. The Customer agrees to provide notice of these Terms and Conditions of Service to all parties falling within this definition of “Customer.” “Shipment” means the goods which are carried under the terms of a single bill of lading or air waybill, irrespective of the quantity or number of containers, packages or pieces. “Third Parties” shall include, but not be limited to, the following: motor carriers, truckmen, cartmen, lightermen, freight forwarders, agents, warehousemen and others to which the Shipment is entrusted for transportation, cartage, handling and/or delivery and/or storage or otherwise.
1. Contract and Scope of Services
- Services as a Property Broker. HGL is a licensed property broker operating under License No. MC-569982 which undertakes to arrange on behalf of the Customers, the interstate transportation of Shipments through Third Parties, from and to various origins and destinations throughout the United States, Canada and Mexico (the “Services”). Third Parties may limit their liability and may operate under terms and conditions further defining their rights, obligations, and defenses, and HGL is authorized to agree to those terms on behalf of the Customer. The Customer agrees that any insertion of HGL’s name as the carrier on a bill of lading shall be for the Customer’s convenience only and shall not change HGL’s status as a property broker.
- As to all services, HGL acts as an independent contractor. All Services provided by HGL to the Customer are governed by these Terms and Conditions of Service, which form a contract between HGL and the Customer, with the exception that if HGL issues a Bill of Lading naming itself as “Carrier,” then it acts in the capacity of a Freight Forwarder, and the conditions of such Bill of Lading shall govern the Services specified therein. These Terms and Conditions of Service supersede all other agreements, representations, warranties, statements, promises, and understandings of the parties, written or oral, except as stated herein. Copies of HGL’s most recent Terms and Conditions of Service may be obtained and will be periodically updated on HGL’s website: https://hglogisticsllc.com/terms-conditions/.
2. Limited Liability
- HGL agrees to select, on behalf of the Customer, the Third Parties to whom the Shipment will be entrusted for transportation, handling, delivery, storage and related Services. However, HGL shall have no liability for any acts or omissions of Third Parties which may damage or delay the Customer’s Shipment or cause other loss to the Customer and its interest in the Shipment, or for Shipments illegally obtained by unauthorized persons through identity theft and other fraudulent schemes. All claims in connection with the acts or omissions of a Third Party shall be brought solely against such party and/or its insurer. All cargo damage claims and supporting documentation must be submitted in writing within thirty (30) days after delivery, which HGL will submit to the Third Party and its insurer. HGL has no liability for any failure of the Third Party or its insurer to pay cargo claims. HGL agrees only to reasonably assist the Customer in bringing cargo claims against Third Parties; however, timely payment of HGL’s invoices to the Customer is a condition precedent to such assistance. HGL cannot assist with food damage claims without a USDA inspection report, salvage report, dumping receipt and commercial invoice.
- THE MAXIMUM LIABILITY OF HGL TO THE CUSTOMER FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND THE CUSTOMER’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING ALLEGED WRONGFUL SELECTION OF A CARRIER, LOSS OR DAMAGE CAUSED BY THEFT OF A SHIPMENT THROUGH ANY FRAUDULENT SCHEME, INCLUDING IDENTITY THEFT, FRAUD BY IMPERSONATION, IMPOSTER THEFT, DOUBLE BROKERING, OR THEFT BY ANY OTHER DISHONEST MEANS) OR OTHERWISE, SHALL BE LIMITED TO $50.00 PER SHIPMENT. THE CUSTOMER AGREES THAT IF IT ARRANGES FIRST-PARTY CARGO INSURANCE PER PARAGRAPH 3 BELOW, IT WILL ACCEPT THE AMOUNT PAID BY THE SUCH INSURER AS THE FULL AND FINAL SATISFACTION OF ANY CLAIMS AGAINST HGL RELATING TO THE GOODS AND SERVICES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, HGL MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND REGARDING ITS SERVICES. IN NO EVENT SHALL HGL BE LIABLE FOR ANY LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SERVICES PROVIDED TO THE CUSTOMER, EVEN IF HGL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- In no case will the maximum liability of any Third Party for damages to or loss of a Shipment be greater than $100,000.
3. Insurance
Unless otherwise agreed in writing, HGL will select Third Parties which have certificates of insurance showing liability insurance coverage limits for loss or damage to cargo up to $100,000. In no event, however, shall HGL be responsible for any Third Party’s failure to actually obtain or maintain such insurance, for any exclusion from coverage which may apply, or for any fraudulent act by Third Parties or any other persons or entities presenting fraudulent or false information to HGL or the Customer. Upon request and for a separate charge, HGL can arrange first-party cargo insurance for the Customer’s Shipment. However, HGL is under no obligation to arrange such insurance unless it receives specific written instructions from the Customer to do so prior to transportation of the Shipment, and the Customer pays the required premium. The Customer agrees HGL assumes no agency role for the Customer in procuring such first-party cargo insurance coverage; such coverage shall be governed exclusively by the terms of the certificate of insurance coverage and policy issued by the insurance company to the Customer; and the insurance company is solely responsible for the payment of insurance claims.
4. Credit
Payment terms and credit limits are subject to credit approval at the sole and absolute discretion of HGL which shall be determined periodically and after submission of a credit application and may be revised if there is a change in the Customer’s payment history or financial condition. The Customer grants HGL the right to perform such credit history and background searches as HGL deems necessary, and will submit a financial statement, if requested.
5. Cash Collect Shipment
HGL can assist with Cash on Delivery (C.O.D.) Shipments, but the Customer assumes the sole responsibility and liability for any failure of a consignee or bank to pay, and for any delay in the Shipment or loss to the Shipment that may result.
6. Payment of Services
Payment terms for all charges incurred for Services performed or arranged by HGL shall be net thirty (30) days from the date of the invoice issued by HGL. Invoices submitted by HGL to the Customer are deemed conclusively accepted and approved and fully payable on the terms contained therein unless disputed in writing by the Customer within seven (7) business days of the Customer’s receipt thereof. Any amount remaining unpaid after thirty (30) days shall accrue interest at a rate equal to the lesser of: (a) one and one-half percent (1.5%) per month; or (b) the highest rate allowed by law. HGL charges for the Services it performs are in addition to the charges of all Third Parties retained by HGL on the Customer’s behalf, which will be invoiced together. The Customer agrees to pay all HGL invoices without reduction or deferment on account of any alleged claim, counterclaim or set-off it believes it has for cargo loss, damage or theft for the shipment at issue in the invoice or for any prior or subsequent shipments, and all charges therein shall be considered as earned by HGL at the moment the Shipment has commenced transportation. The Customer agrees to pay any per diem, container use, chassis use/rental and/or storage/demurrage charges that result from any delays caused by the Customer’s delay in accepting delivery of the Shipment, devanning the goods from the intermodal container or which are otherwise attributable to any act or omission of the Customer. Any claim for refund of charges paid to HGL for any reason, must be presented in writing to HGL within one year of the date of the invoice at issue, or such claim is waived and forfeited.
7. Lien on Customer’s Goods
The Customer agrees that HGL has a general, contractual lien on all Shipments which are the subject of Services provide by HGL while such Shipments are in possession of any Third Party for any accounts receivable owed by the Customer to HGL arising from the specific Shipment against which the lien is asserted, and/or arising from any previous Shipments. If HGL elects to hold any Shipment based on these lien rights, it will provide written notice of that election to the Customer, and the Customer agrees HGL has the authority to direct Third Parties to hold shipments on the basis of these lien rights and to arrange unloading and storage at the Customer’s expense. If the Customer fails to make payment arrangements or post security to HGL’s reasonable satisfaction within thirty (30) days of such notice, HGL will have the right to sell the Shipment at private or public sale or auction and will remit to the Customer any net proceeds after the sale which exceeds the total amount owed (including any accrued unloading, loading and storage charges). The Customer shall provide notice to any other parties having an interest in the Shipment of those lien right sand of any exercise of those rights by HGL.
8. Indemnification
The Customer shall indemnify, defend, and hold harmless HGL, and each and all of its members, managers, officers, employees, agents and representatives, and each of their respective successors and assigns, from and against any and all claims, damages, losses and/or liabilities including, but not limited to, attorneys’ fees and costs, in any way related to or arising from the Customer’s: (a) breach of these Terms and Conditions of Service; (b) negligent acts or omissions or willful misconduct in relation to the Shipment including, but not limited to, the manner in which the Shipment was prepared and/or packed for Shipment; or (c) violation of any applicable federal, state, or local law, ordinance, rule, regulation or other legal, judicial or administrative requirement.
9. Applicable Law, Venue and Time for Suit
These Terms and Conditions of Service shall be governed by Ohio law without the application of its conflict of laws principles. Any suit relating to this Agreement shall be instituted in a state or federal court in Hamilton County, Ohio and the parties irrevocably consent and waive all objections to the jurisdiction and venue of any such court.; provided that a suit to enforce a judgment against the Customer may be filed in any jurisdiction where the Customer is located or has assets. Any cause of action against HGL relating to or arising out of the Services HGL provides to the Customer will not be valid unless such action is commenced by the filing of a complaint in the required venue within one year of the date of the alleged loss. HGL shall be entitled to recover its courts costs and reasonable attorneys’ fees from the Customer in any action for collection of any payment due to HGL or in any other action in which HGL prevails in the enforcement of these Terms and Conditions of Service.
10. Severability
The provisions set forth in these Terms and Conditions of Service are severable, and if any particular provision should be held invalid, unenforceable or illegal by a court having competent jurisdiction, the remainder of these Terms and Conditions shall not be affected and shall be construed as if such invalid, unenforceable or illegal provision(s) was (were) omitted.
11. Force Majeure
In the event that HGL is prevented from performing Services because of an occurrence beyond its control and arising without its fault or negligence, including without limitation, war, riots, rebellion, acts of God, pandemics, public health emergencies, quarantines and business restrictions by public health authorities and other acts of lawful authorities, fire, strikes, lockouts or other labor disputes, such failures to perform shall be excused for the duration of such occurrence. Whenever possible, in the event of a force majeure event, shall promptly notify the Customer in writing, stating the reasons for the inability to comply with the provisions of this Agreement, and the expected duration of the force majeure event. HGL shall not be liable for any delays or failures in the performance of Services due to circumstances beyond its control.
12. Modification
No modification of these Terms and Conditions of Service, by separate contract or otherwise, shall be of any force or effect unless it is in writing and signed by a duly authorized representative of both HGL and the Customer prior to Shipment; and (b) expressly states it is a modification of these Terms and Conditions of Service.
4913-1845-2135.2