Terms and Conditions

1. General

CarrierStore Inc. (hereinafter referred to as "CSI") owns and operates the CarrierStore xCHANGE, a business-to-business web portal (the “Portal”) that simplifies shipping volume freight, whether truckload or LTL, in the Continental United States by enabling shippers to compare freight rates for selected routes of freight carriers (hereinafter referred to individually as a “Carrier” and collectively as the “Carriers”). Any individual or entity using the CarrierStore xCHANGE to arrange for the shipment of freight shall be referred to as a “Shipper.” Carriers and Shippers may sometimes be referred to collectively as a “Customer” or “Customers.”

Customer agrees to these TERMS AND CONDITIONS and any changes to these TERMS AND CONDITIONS that CSI may publish from time to time which, subject to the following paragraph, no agent or employee of the parties may alter. These TERMS AND CONDITIONS and any changes hereto shall apply to this and all future use of the Portal by Customer. With respect to Carriers, in the case of a conflict between these TERMS AND CONDITIONS and any Services Agreement between Carrier and CSI, the terms of such Services Agreement shall control.

CSI reserves the right to change these TERMS AND CONDITIONS from time to time at its sole discretion. Customer’s continued use of this Portal or any services accessible through it constitutes Customer’s acceptance of such changes. Customer’s use of the Portal will be subject to the most current version of the TERMS AND CONDITIONS posted on the Portal at the time of such use. Customer should periodically check the TERMS AND CONDITIONS to review the then-current terms.

2. General Rules Tariffs

In the case of conflict between these TERMS AND CONDITIONS and those set forth by the individual selected Carrier's General Rules Tariff, the selected Carrier's General Rules Tariff shall control. All terms and conditions, including, but not limited to, all limitations of liability, shall apply to Shipper and the selected Carrier and each their agents and contracted carriers. CSI is a business-to-business provider and NOT a freight carrier. CSI reserves the right, in its sole discretion, to refuse any Customer access to the Portal at any time.

3. Customer Conduct

In using the Portal, including all services available through it, Customer agrees: (1) not to disrupt or interfere with any other user’s utilization of the Portal or affiliated or linked sites; (2) not to upload, post or otherwise transmit through the Portal any viruses or other harmful disruptive, or destructive files; (3) not to create a false identity; (4) not to use or attempt to use another’s account, password, service, or system without authorization from CSI and the other user; (5) not to access or attempt to access any content to which Customer is not authorized to access; (6) not to disrupt or interfere with the security of, or otherwise cause harm to the Portal, or any services, system resources, accounts, passwords, servers, or networks connected to or accessible through the Portal or any affiliated or linked sites.

Customer acknowledges that the restrictions set forth herein are reasonable in scope and essential to CSI’s legitimate business interests, that violation of one or more of these restrictions may have an irreparable, material and adverse effect upon CSI, and that damages arising from any breach of such restrictions may be difficult to ascertain. Without limiting any other remedy at law or equity available to CSI, CSI shall have the right to an immediate injunction enjoining Customer’s breach of these restrictions. CSI shall have the right to receive from Customer CSI’s reasonable attorney’s fees, court costs and expenses in any litigation or judicial proceeding (including appeals) that ultimately results in an order or decision enforcing the provision of this Section 3. Every right and remedy of CSI for any breach of this Section 3 shall be cumulative, and CSI, in its sole discretion, may exercise any and all rights or remedies stated in these TERMS AND CONDITIONS or otherwise available at law or in equity.

4.Bills of Lading

Shipper must utilize the CSI Bill of Lading. All Bills of Lading are NON-NEGOTIABLE and have been provided by CSI based on information prepared by the Shipper and shall be deemed, conclusively, to have been prepared by the Shipper. Any unauthorized alteration or use of any other Bills of Lading, shall VOID all rate quotes.

The following is an example of the terms and conditions portion of the CSI Bill of Lading. It is for illustrative purposes only. In the case of a conflict between this sample Bill of Lading and the Bill of Lading for a particular transaction, the Bill of Lading used in that transaction shall govern.

SAMPLE BILL OF LADING:

UNIFORM BILL OF LADING TERMS AND CONDITIONS

Sec.1. (a) The carrier or the party in possession of any of the property described in this bill of lading shall be liable as at common law for any loss thereof or damage thereto, except as hereinafter provided.

(b) No carrier shall be liable for any loss or damage to a shipment or for any delay caused by an Act of God, the public enemy, the authority of law, or the act or default of shipper. Except in the case of negligence of the carrier or party in possession, the carrier or party in possession shall not be liable for loss, damage or delay which results: when the property is stopped and held in transit upon request of the shipper, owner or party entitled to make such request; or from faulty or impassable highway, or by lack of capacity of a highway bridge or ferry; or from a defect or vice in the property; or from riots or strikes. The burden to prove freedom from negligence is on the carrier or the party in possession.

Sec. 2. Unless arranged or agreed upon, in writing, prior to shipment, carrier is not bound to transport a shipment by a particular schedule or in time for a particular market, but is responsible to transport with reasonable dispatch. In case of physical necessity, carrier may forward a shipment via another carrier.

Sec. 3. (a) As a condition precedent to recovery, claims must be filed in writing with: any participating carrier having sufficient information to identify the shipment.

(b) Claims for loss or damage must be filed within nine months after the delivery of the property (or, in the case of export traffic, within nine months after delivery at the port of export), except that claims for failure to make delivery must be filed within nine months after a reasonable time for delivery has elapsed.

(c) Suits for loss, damage, injury or delay shall be instituted against any carrier no later than two years and one day from the day when written notice is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts of the claim specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier shall be liable, and such claims will not be paid.

(d) Any carrier or party liable for loss of or damage to any of said property shall have the full benefit of any insurance that may have been effected, upon or on account of said property, so far as this shall not avoid the policies or contracts of insurance, PROVIDED, that the carrier receiving the benefit of such insurance will reimburse the claimant for the premium paid on the insurance policy or contract.

Sec. 4 (a) If the consignee refuses the shipment tendered for delivery by carrier or if carrier is unable to deliver the shipment, because of fault or mistake of the consignor or consignee, the carrier's liability shall then become that of a warehouseman. Carrier shall promptly attempt to provide notice, by telephonic or electronic communication as provided on the face of the bill of lading, if so indicated, to the shipper or the party, if any, designated to receive notice on this bill of lading. Storage charges, based on carrier's tariff, shall start no sooner than the next business day following the attempted notification. Storage may be, at the carrier's option, in any location that provides reasonable protection against loss or damage. The carrier may place the shipment in public storage at the owner's expense and without liability to the carrier.

(b) If the carrier does not receive disposition instructions within 48 hours of the time of carrier's attempted first notification, carrier will attempt to issue a second and final confirmed notification. Such notice shall advise that if carrier does not receive disposition instructions within 10 days of that notification, carrier may offer the shipment for sale at a public auction and the carrier has the right to offer the shipment for sale. The amount of sale will be applied to the carrier's invoice for transportation, storage and other lawful charges. The owner will be responsible for the balance of charges not covered by the sale of the goods. If there is a balance remaining after all charges and expenses are paid, such balance will be paid to the owner of the property sold hereunder, upon claim and proof of ownership.

(c) where carrier has attempted to follow the procedure set forth in subsections 4(a) and (b) above and the procedure provided in this section is not possible, nothing in this section shall be construed to abridge the right of the carrier at its option to sell the property under such circumstances and in such manner as may be authorized by law. When perishable goods cannot be delivered and disposition is not given within a reasonable time, the carrier may dispose of property to the best advantage.

(d) Where a carrier is directed by consignee or consignor to unload or deliver property at a particular location where consignor, consignee, or the agent of either, is not regularly located, the risk after unloading or delivery shall not be that of the carrier.

Sec. 5 (a) In all cases not prohibited by law, where a lower value than the actual value of the said property has been stated in writing by the shipper or has been agreed upon in writing as the released value of the property as determined by the classification or tariffs upon which the rate is based, such lower value plus freight charges if paid shall be the maximum recoverable amount for loss or damage, whether or not such loss or damage occurs from negligence.

(b) No carrier hereunder will carry or be liable in any way for any documents, coin money, or for any articles of extraordinary value not specifically rated in the published classification or tariffs unless a special agreement to do so and a stipulated value of the articles are endorsed on this bill of lading.

Sec. 6. Every party, whether principal or agent, who ships explosives or dangerous goods, without previous full written disclosure to the carrier of their nature, shall be liable for and indemnify the carrier against all loss or damage caused by such goods. Such goods may be warehoused at owner's risk and expense or destroyed without compensation.

Sec. 7. (a) The consignor or consignee shall be liable for the freight and other lawful charges accruing on the shipment, as billed or corrected, except that collect shipments may move without recourse to the consignor when the consignor so stipulates by signature or endorsement in the space provided on the face of the bill of lading. Nevertheless, the consignor shall remain liable for transportation charges where there has been an erroneous determination of the freight charges assessed, based upon incomplete or incorrect information provided by the consignor.

(b) Notwithstanding the provisions of subsection (a) above, the consignee's liability for payment of additional charges that may be found to be due after delivery shall be as specified by 49 U.S.C. §13706, except that the consignee need not provide the specified written notice to the delivering carrier if the consignee is a for-hire carrier.

(c) Nothing in this bill of lading shall limit the right of the carrier to require the prepayment or guarantee of the charges at the time of shipment or prior to delivery. If the description of articles or other information on this bill of lading is found to be incorrect or incomplete, the freight charges must be paid based upon the articles actually shipped.

Sec.8. If this bill of lading is issued on the order of the shipper, or his agent, in exchange or in substitution for another bill of lading, the shipper's signature on the prior bill of lading or in connection with the prior bill of lading as to the statement of value or otherwise, or as to the election of common law or bill of lading liability shall be considered a part of this bill of lading as fully as if the same were written on or made in connection with this bill of lading.

Sec. 9. If all or any part of said property is carried by water over any part of said route, such water carriage shall be performed subject to the terms and provisions and limitations of liability specified by the "Carriage of Goods By Sea Act" and any other pertinent laws applicable to water carrier.

Sec.10. The rate quoted is predicated on the RVNX set forth on this Bill of Lading. Under no circumstances may the shipper change the valuation liability.

Sec.11. Additional services requested by shipper or consignee not set forth on this bill of lading shall be assessed pursuant to the carrier’s general rules tariff. The carrier’s general rules tariff will govern the provision of such services, the costs assessed in connection with such services and the resolution of any dispute arising therefrom.

Sec.12. If there are differences or inconsistencies between this bill of lading and the bill of lading of the carrier, the terms and conditions of the carrier’s bill of lading, including but not limited to its tariff and RVNX, shall govern in all respects, and the same shall be incorporated herein by reference and considered a part of this bill of lading as fully as if the same were written on this bill of lading. A copy of the carrier’s bill of lading is available at http://www.carrierstore.com/billoflading. If it is not clear what this means, contact the carrier for additional information.

5. Shipper's Warranties and Covenants

The Shipper is responsible for and warrants and covenants their compliance with these TERMS AND CONDITIONS and 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. The Shipper agrees to furnish such information and complete and attach to each Bill of Lading such documents as are necessary to comply with such laws, rules and regulations. CSI assumes no liability to the Shipper or to any other person for any loss or expense due to the failure of the Shipper to comply with this provision. Any individual or entity acting on behalf of the Shipper in scheduling shipments hereunder warrants that it has the right to act on behalf of the Shipper and the right to legally bind Shipper.

6. Necessary Documentation

The Shipper is required to use CSI’s system-generated Bill of Lading, and the selected Carrier’s general rules tariff and RVNX published on the BOL. CSI is not liable to the Shipper or to any other person for any actions taken on behalf of the Shipper under this provision.

7. Payment

Once a Shipper has selected a Carrier, all payments shall be made between the Shipper and the Carrier and are subject to the Carrier’s payment policies. Shipper acknowledges and agrees that a quoted rate shall only apply if the shipment is as was described in the search. A shipment may be re-rated and/or additional costs for shipment may apply in the event of any discrepancy between the description of the shipment (as entered by the Shipper on the Portal) and the actual shipment, including but not limited to errors and/or inaccuracies relating to class, description, quantity, weight, address (origin/destination), and/or selection of accessorials (including but not limited to haz-mat, inside delivery/pick-up, liftgate delivery/pick-up, linear feet, over dimensions, sort & seg, and/or detention time). Shipper may be subject to termination fees for any shipment cancelled prior to pickup and/or delivery.

All Shippers are subject to credit approval by CSI. CSI intends to perform a credit check based on the information provided at the time of enrollment by the Shipper. This credit check may also be in compliance with each Carrier’s credit requirements.

The Shipper shall be liable to the Carrier for all charges payable on account of such Shipper's shipment, including but not limited to transportation, fuel and other applicable accessorial charges, including all adjustments issued by the Carrier(s) after the shipment, and all duties, customs assessments, governmental penalties and fines, taxes, and Carrier or CSI's attorneys’ fees and legal costs allocable to this shipment and/or all disputes related thereto. Unless otherwise agreed by broker, Shipper and Carrier, brokers scheduling shipments for clients shall be liable, jointly and severally, for all charges payable on account of such client's shipment.

8. Freight Cargo Claims and Limitations of Liability

The selected Carrier's RVNX published on the BOL generated by the shipper determines the liability cargo insurance coverage offered. All freight cargo claims should be submitted immediately to the selected Carrier to help ensure timely resolution, and CSI shall have no liability or responsibility for same.

CSI is not liable for any loss, damage, delay, mis-delivery or non-delivery including but not limited to any such loss, damage, delay, mis-delivery or non-delivery: (1) caused by the act, default or omission of the selected Carrier; (2) caused by the act, default or omission of the Shipper or any other party who claims interest in the shipment, or caused by the nature of the shipment or any defect thereof; (3) caused by violation(s) by the Shipper of any of the TERMS AND CONDITIONS contained herein or in the Bill of Lading or of the selected Carrier's General Rules Tariff including, but not limited to, improper or insufficient packing, securing, marking or addressing, or of failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions; (4) as a result of any fault of the SMC3 Carrier Connect application, the EDI system, or any other systems utilized by Shipper or CSI; (5) caused by any error or errors in the Bill of Lading, regardless of where they originate; (6) caused by any errors or incorrect data, regardless of where the error originated; (7) caused by any inaccurate entry by Shipper of shipping terms, inaccurate postings on the Portal or errors in submission of bids to the Portal; (8) caused by the failure of system to timely transmit bids and acceptances of bids on the Portal; (9) caused by incorrect or inaccurate tracking information; or (10) caused by the acts of God, perils of the air, public enemies, public authorities, acts or omissions of Customs or quarantine officials, war, riots, strikes, labor disputes, weather conditions or mechanical delay or failure of aircraft or other equipment. CSI is not liable for failure to comply with delivery or other instructions from the Shipper or for the acts or omissions of any person other than employees of CSI as such liability is limited by these Terms and Conditions including but not limited to by subsequent paragraphs of this Section 8. CSI is not liable to Carriers that may use the Portal except as may be provided in any Services Agreement between the Carrier and CSI.

Customer expressly agrees and understands that with respect to any claim, action, liability or damages that may arise out of or relate to a transaction originating on the Portal, CSI shall have no liability whatsoever to Customer or any third party with respect thereto, as if CSI was never involved in said transaction. To the extent CSI is held to be liable under these TERMS AND CONDITIONS by a court of law with valid jurisdiction over CSI, CSI’s maximum liability relating to the services rendered pursuant to this Agreement (regardless whether the action is brought in contract, negligence or otherwise) shall be limited to the fees paid by selected Carrier to CSI for the shipment giving rise to liability. CSI shall not be liable for consequential or punitive damages including, but not limited to lost profits or savings.

CSI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO DELIVERIES OR WITH REGARD TO THIS PORTAL, INFORMATION PROVIDED ON THIS PORTAL OR SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THIS PORTAL. CSI MAKES NO WARRANTY THAT (1) THE SERVICES RELATED TO TRANSACTIONS CONDUCTED ON THIS PORTAL WILL MEET CUSTOMER’S REQUIREMENTS; (2) THE SERVICES RELATED TO THE TRANSACTIONS CONDUCTED ON THIS PORTAL WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES RELATED TO THE TRANSACTIONS CONDUCTED ON THIS PORTAL WILL MEET CUSTOMER’S EXPECTATIONS; AND (4) ANY ERRORS IN THE SOFTWARE USED THROUGH THE PORTAL, OR ANY DEFECTS IN THE PORTAL, OR ITS SERVICES, WILL BE CORRECTED.

THIS PORTAL COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES, OR TYPOGRAPHICAL ERRORS. CSI MAY MAKE CHANGES TO THE PORTAL AT ANY TIME WITHOUT NOTICE TO CUSTOMER. THE PORTAL MAY BE OUT OF DATE, AND CSI MAKES NO COMMITMENT TO UPDATE THE PORTAL.

CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT: (1) CSI DOES NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY CONTENT, PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH THE PORTAL, INCLUDING, WITHOUT LIMITATION, CARRIERS; (2) CSI MAKES NO REPRESENTATION OR WARRANTIES WHATSOEVER ABOUT ANY SUCH THIRD PARTIES, INCLUDING CARRIERS, THEIR CONTENT, PRODUCTS, OR SERVICES; (3) ANY DEALINGS CUSTOMER MAY HAVE WITH SUCH THIRD PARTIES ARE AT CUSTOMER’S OWN RISK; AND (4) CSI SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY CONTENT, PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES.

IN NO EVENT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL CSI, ITS SUBSIDIARIES, AFFILIATES, AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS OR SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT CSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THIS PORTAL OR ITS SERVICES, THE STATEMENTS OR ACTIONS OF ANY THIRD PARTY ON OR THROUGH THE PORTAL, ANY DEALINGS WITH VENDORS OR OTHER THIRD PARTIES, ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA, ANY INFORMATION THAT IS SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY FAILURE TO STORE OR LOSS OF DATA, FILES, OR OTHER CONTENT, ANY SERVICES AVAILABLE THROUGH THE PORTAL THAT ARE DELAYED OR INTERRUPTED, OR ANY WEBSITES REFERENCED OR LINKED TO FROM THIS PORTAL.

9. Other Limitations

Unless otherwise provided within these TERMS AND CONDITIONS, or unless specific applicable law requires CSI to allow Customer to do so, Customer may not do any of the following without the prior written consent of CSI: (1) Use any robot, spider, other automatic device, or manual process to monitor the content of this Portal; (2) with respect to Carriers, attempts to access the prices offered by other Carriers on the Portal; (3) use the Portal other than to arrange for legitimate transactions; (4) use the Portal to make any false, fraudulent or speculative transaction; (5) imply in any fashion that CSI is endorsing Customer’s products or services; (6) post or transmit any unlawful, threatening, libelous, defamatory, obscene, indecent, inflammatory, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law; or for any other purpose that is unlawful or prohibited by these TERMS AND CONDITIONS; (7) use or access the Portal in any way that, in CSI’s reasonable judgment, adversely affects the performance or function of the Portal, or any other computer systems or networks used by CSI; (8) upload or transmit to the Portal or use any device, software or routine that contains viruses, Trojan horses, worms, time bombs, or other computer programming routines that may damage, interfere or attempt to interfere with, intercept, the normal operation of this Portal, or appropriate the Portal or any system, or take any action that imposes an unreasonable load on our computer equipment, or that infringes upon the rights of a third party; and (9) disguise the origin of the information transmitted through this Portal.

10. Termination

CSI, in its sole discretion, may at any time and without advance notice or liability, terminate or restrict Customer’s access to all or any component of this Portal, even if access continues to be allowed to others. Upon such termination or suspension, Customer must immediately discontinue use of the Portal, and destroy any copy or copies it has made of any portion of the Portal. Accessing the Portal after such termination, suspension or discontinuation shall constitute an act of trespass. CSI shall not be responsible to Customer for such suspension or termination.

11. Copyrights

All of CSI’S copyrights, patents and other intellectual property rights shall be the sole property of CSI. Any unauthorized use or reproduction may violate applicable laws, including, but not limited to copyright, trademark, patent, trade secret, unfair competition laws.

12. Forum Selection and Choice of Law

Any claim, dispute or litigation relating to these Terms and Conditions, any shipment scheduled or tendered hereunder or through CSI’S Portal, or relating to any and all disputes among the Carrier, CSI and the enrolled Shipper, Shipper and/or Consignee and/or Brokers for any enrolled Shipper, Shipper and/or Consignee, shall be filed in the courts of the Commonwealth of Massachusetts or in the United States District Court located therein and shall be subject to Massachusetts law without regard to its conflict of laws provisions.

13. Severability

If for any reason a court of competent jurisdiction finds any provision of these TERMS AND CONDITIONS, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties as reflected by that provision, and the remainder of these TERMS AND CONDITIONS shall continue in full force and effect. Any failure by CSI to enforce or exercise a provision of these TERMS AND CONDITIONS or related right shall not constitute a waiver or that right or provision.

14. Rates

Rates are all-inclusive based on the freight characteristics, origin, destination, weight and accessorials entered by the Shipper, provided, however, that any deviation from said characteristics may cause the loss of the quoted rate and the imposition of additional fees up to and including full tariff charges. All rates are one-time only and Shipper shall not be entitled to receive the same rate on any subsequent shipment, regardless of its characteristics. Once a Shipper has selected and contracted with a Carrier to move a shipment on the CSI generated BOL, the scheduled load must be tendered to the Carrier as requested on the CSI generated Bill of Lading.

15. Guaranteed Services

LTL and Truckload Guaranteed Services are inclusive of transit times only as noted by the terms of the Carrier selected. Guaranteed Service transit times do not include holiday and/or no service days as defined by the individual Carrier. This service is not a guarantee for Pickup. Pickup Day is not included in the qualification and calculation of LTL transit time. The Shipper is liable for all charges related to the shipment in accordance with each Carrier’s terms and conditions for Guaranteed Service.

16. Cargo Liability Insurance

SHIPPER SHALL BE LIMITED TO RECOVERY PURSUANT TO THE RVNX published on the CSI BOL. CSI has no responsibility, liability or involvement in the issuance of insurance, the denial of insurance, or in the payment of claims.

 

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