TERMS AND CONDITIONS OF SERVCE
The following terms and conditions shall apply to any service of any kind provided by NEED IT NOW DELIVERS (formally FASTMILE) to or on behalf of any customer. By hiring NEED IT NOW DELIVERS (formally FASTMILE), customer certifies that it has read and expressly agreed to the application of each and every condition hereunder.
1.1 The following definitions are applicable to all terms as used herein and in any shipping documents or paperwork issued by NEED IT NOW DELIVERS:
1.1.1 Carrier – shall refer to NEED IT NOW DELIVERS or any other entity to which NEED IT NOW DELIVERS outsources carriage services, and who performs such carriage services under its own authority.
1.1.2 Consignor or Shipper – the entity or individual who tenders cargo to NEED IT NOW DELIVERS for transportation.
1.1.3 Consignee – the entity or individual to whom the Shipper has directed NEED IT NOW DELIVERS to deliver the cargo or the entity listed on the bill of lading as consignee.
1.1.4 “Carrier”, “consignor” or “consignee” include the authorized representatives or agents of such “carrier”, “consignor” or “consignee”.
1.1.5 Shipment – a unit of cargo tendered to NEED IT NOW DELIVERS for transportation by the Shipper under a single receipt, bill of lading or shipping document, or any item or group of items being transported together from the same origin to the same destination.
1.1.6 Limitation of Liability or Release Value – the maximum liability of Carrier for any Shipment, either measured in a “per pound” or “per shipment” basis. The standard limitation of liability applicable to any shipment hereunder, absent a separate written and signed agreement for greater liability, shall be the lesser of $100 per shipment or $2.00 per pound.
1.1.7 Claim – a written document provided to NEED IT NOW DELIVERS identifying the Shipment at issue, asserting liability upon NEED IT NOW DELIVERS for loss or damage thereto, and specifying a monetary value of the alleged damage or loss, providing supporting documentation therefore.
1.1.8 Concealed Damage – concealed damage is any damage not noted on the delivery receipt by the consignee at the time of delivery. NEED IT NOW DELIVERS is NOT liable for concealed damage under any circumstances.
1.1.9 Warehousing or Warehouseman – NEED IT NOW DELIVERS shall be engaged in warehousing/storage and its liability shall be that of a warehouseman when goods are stored with or left in NEED IT NOW DELIVERS’ possession by a customer in excess of thirty (30) days. NEED IT NOW DELIVERS’ liability for warehousing or acting as a warehouseman shall be as described in paragraph 4.11.
2.1 NEED IT NOW DELIVERS and/or the carrier in possession of any property moving under this agreement shall be liable for loss, damage, or delayed delivery only as hereinafter provided.
2.2 NEED IT NOW DELIVERS shall have no liability for any loss or damage to a shipment or for any delay caused by an Act of God, public enemy, public authority, inherent vice or defect in the cargo, or act or default of the shipper. NEED IT NOW DELIVERS or the carrier 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.
2.3 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. NEED IT NOW DELIVERS may forward a shipment via another carrier.
3. CLAIM FILING, CONCEALED DAMAGE, AND CONDITIONS PRECEDENT TO RECOVERY
3.1 As a condition precedent to recovery, any claim for loss, damage, or delay must be submitted in writing to NEED IT NOW DELIVERS within 30 days of delivery or such date as delivery was anticipated in the case of loss. Such written claim must include an identification of the shipment in question by BOL or load number, a specification as to the precise damage to each item included within the shipment, an assertion of liability on the part of the NEED IT NOW DELIVERS , and a demand for a specified amount of monetary damages, with supporting documentation for such a demand including all relevant invoices or repair estimates.
3.2 As a further condition precedent to recovery, any damage or shortage must be noted on the delivery receipt. Failure to note shortage or damage on the delivery receipt shall be considered concealed damage. Concealed damage must be reported to NEED IT NOW DELIVERS within twenty-four hours of delivery. NEED IT NOW DELIVERS will not have any liability for concealed damage not reported within twenty-four hours of delivery. NEED IT NOW DELIVERS’ maximum liability in all cases of concealed damage shall not be more than the freight charge for that singular shipment.
3.3 Suits for loss, damage, injury or delay shall be instituted against any NEED IT NOW DELIVERS not later than two years and one day from the day when written notice is given by the NEED IT NOW DELIVERS to the claimant that NEED IT NOW DELIVERS 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, NEED IT NOW DELIVERS shall have no liability, and such claims will not be paid.
4. LIMITATIONS OF LIABILITY
4.1 NEED IT NOW DELIVERS shall not under any circumstances be held liable for special or consequential damages arising from or related in any way to transportation services to which these terms apply. Special and Consequential damages include any type of damages, monetary or equitable other than physical damage to the cargo being transported.
4.2 NEED IT NOW DELIVERS shall have no liability for delay claims. As provided in section 2.3, absent a separate written, signed agreement, NEED IT NOW DELIVERS has no duty to deliver cargo by a date or time specific, and instead shall proceed with reasonable dispatch. In any event where NEED IT NOW DELIVERS is found liable for a claim of delay, NEED IT NOW DELIVERS’ liability shall be limited to the total freight charge paid by the shipper for the transportation of that particular delayed shipment.
4.3 NEED IT NOW DELIVERS if found liable for loss or damage to any property tendered to it 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 void the polices or the contracts of insurance.
4.4 In any and all matters not prohibited by law, where the shipper fails, refuses, or simply does not declare a value in writing to NEED IT NOW DELIVERS prior to tendering the subject shipment, which declaration is received by NEED IT NOW DELIVERS , and commensurate rate increase is agreed upon and paid by shipper, the value of any shipment of cargo tendered to NEED IT NOW DELIVERS shall be the lesser of $100 per shipment or $2.00 per pound per article or the actual repair or actual cash value of the cargo.
4.5 Where shipper does wish to purchase a higher released value, shipper shall request that from FASTMILE and pay an additional fee of $2.95 per $100 in increase valuation.
4.6 The limitation of liability provided for in this section shall be enforceable regardless of cause of loss, damage or delay, including gross negligence, recklessness or willful and wanton conduct. Nothing short of conversion to NEED IT NOW DELIVERS’ own use, for the direct benefit of the corporation itself, shall vitiate this limitation of liability.
4.7 NEED IT NOW DELIVERS will not carry a shipment declared to have a value in excess of $2,000.00 under these terms and any standard bill of lading. Any shipment with a value in excess of $2,000.00 must be represented by a separate written agreement whereby the commodity is described in detail and NEED IT NOW DELIVERS expressly agrees to such greater value. Such separate written agreement must be executed by duly authorized representatives of each party at least twenty-four hours prior to transportation.
4.8 Under no circumstances will any shipment containing particularly high valued items such as cash, furs, jewelry, coins, negotiable instruments, or items of similar value to weight ratios be accepted pursuant to this bill of lading. Any such shipments must be covered by a separate written agreement executed by both parties. If such a shipment is inadvertently accepted by carrier, or mislabeled by shipper for any reason, NEED IT NOW DELIVERS’ liability shall be limited as provided in section 4.4.
4.9 No employee or representative of FASTMILE is authorized to alter, vary or contradict these terms regarding NEED IT NOW DELIVERS’ liability.
4.10 Should any claim in any amount even if in excess of such limits of NEED IT NOW DELIVERS’ liability be asserted against NEED IT NOW DELIVERS by any third party for any loss or damage to any shipments carried hereunder, shipper agrees to indemnify NEED IT NOW DELIVERS and hold it harmless against any damages, expenses, or cost including attorney’s fees, arising out of any such claim regardless of the cause.
4.11 Where NEED IT NOW DELIVERS is acting as a warehouseman, as defined in section 1.1.9, the limitations of liability within this section (4) shall remain fully applicable. However, without concern as to the cause of damage or loss, and regardless of any alleged or actual want of care, including but not limited to wanton conduct or gross negligence, in no circumstance shall NEED IT NOW DELIVERS’ liability exceed that provided for in its current warehouseman’s legal liability policy in effect on the date of loss (a copy of such policy can be requested by customer’s at any time). All conditions and exclusions of such policy shall apply to any claims against NEED IT NOW DELIVERS by customers storing goods with NEED IT NOW DELIVERS, and under no circumstance shall NEED IT NOW DELIVERS’ complete and absolute liability for any such claim on Warehoused goods exceed the lesser of the actual invoice value, the cost to repair the goods, or $25,000.00. This limitation only applies when the limitation in paragraph 4.4 is held inapplicable, which lesser limitation shall apply where not prohibited by law.
5. PAYMENT OF FREIGHT CHARGES
5.1 Freight charges pursuant to this bill of lading are due within fifteen (15) business days of delivery of said shipment unless a credit agreement is in place between NEED IT NOW DELIVERS and Shipper. In the event of customer’s failure to pay freight charges in full within fifteen (15) days of delivery, customer hereby agrees to pay liquidated damages in the amount of thirty percent (30%) of the original freight charges, in addition to the original freight charges, plus reasonable attorney’s fees and all costs of collection whether or not suit is commenced.
5.2 No shipper or consignee shall be entitled to set off any claims for loss, damage or delay against freight charges owed to NEED IT NOW DELIVERS , and any pending or denied claims shall not serve to toll or void the NEED IT NOW DELIVERS’ collection efforts, loss of discount, or NEED IT NOW DELIVERS’ entitlement to fees.
5.3 Nothing in this bill of lading shall limit the right of the NEED IT NOW DELIVERS to require the prepayment or guarantee of the charges at the time of shipment or prior to delivery.
5.4 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, weights, and counts actually shipped.
5.5 Any and every party, whether principal or agent, shipper or consignee, who ships explosives, illegal goods, contraband, or dangerous goods, shall be liable for and indemnify NEED IT NOW DELIVERS against all loss or damage caused by such goods. Such goods may be warehoused at owner’s risk and expense or destroyed without compensation.
5.6 If the consignee refuses the shipment tendered for delivery by NEED IT NOW DELIVERS or if carrier is unable to deliver the shipment, because of fault or mistake of the consignor or consignee or for any reason not directly attributable to carrier, NEED IT NOW DELIVERS’ liability shall then become that of a warehouseman, except that the limitations of liability herein shall still apply unless a lesser limitation is found to apply by virtue of the law. NEED IT NOW DELIVERS 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 terms and conditions, shall start no sooner than the next business day following the attempted notification. Storage may be, at NEED IT NOW DELIVERS option, in any location that provides reasonable protection against loss or damage. NEED IT NOW DELIVERS may place the shipment in public storage at the owner’s expense and without liability to NEED IT NOW DELIVERS.
5.7 If NEED IT NOW DELIVERS does not receive disposition instructions within 48 hours of the time of NEED IT NOW DELIVERS’ attempted first notification, NEED IT NOW DELIVERS 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, NEED IT NOW DELIVERS may offer the shipment for sale at a public or private auction and FASTMILE has the right to offer the shipment for sale. The amount of sale will be applied to NEED IT NOW DELIVERS’ 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.
6.1 NEED IT NOW DELIVERS, at its sole discretion, may act as a broker in completing the transportation and delivery services of any customer hereunder.
6.2 NEED IT NOW DELIVERS may, at its sole discretion, utilize independent contractors or agents to perform any part of portion of the services contemplated hereunder.
6.3 When acting as a broker, or otherwise substituting carriage, transportation, or related services, NEED IT NOW DELIVERS’ liability shall not vary from these terms as in section 4. Any carrier or delivery company providing substitute service hereunder shall have no liability greater than that contemplated by these terms.
7. INDEPENDENCE OF PARTIES
7.1 This Agreement does not constitute a hiring by either party. It is the parties intention that NEED IT NOW DELIVERS shall have an independent contractor status and not be an employee for any purposes, including, but not limited to, the application of the Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the Workers’ Compensation Insurance Code, and/or other benefit payments and third party liability claims. NEED IT NOW DELIVERS shall retain sole and absolute discretion in the manner and means of carrying out his or her activities and responsibilities under this Agreement. This Agreement shall not be considered or construed to be a partnership or joint venture, and shipper shall not be liable for any obligations incurred by NEED IT NOW DELIVERS unless specifically authorized in writing. NEED IT NOW DELIVERS shall not act as an agent of the shipper, ostensibly or otherwise, nor bind the shipper in any manner, unless specifically authorized to do so in writing.
8. FORCE MAJEURE
8.1 Neither Party shall be liable to the other for failure to perform any of its obligations under this Agreement during any time in which such performance is prevented by fire, flood, or other natural disaster, war, embargo, riot, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of the Parties provided that the Party so prevented uses its best efforts to perform under this Agreement and provided further, that such Party provide reasonable notice to the other Party of such inability to perform.
9. CARMACK LIABILITY
9.1 Unless it is determined otherwise by a court of competent jurisdiction, the liability of NEED IT NOW DELIVERS for loss, damage and delay shall be determined in all respects in accordance with 49 U.S.C. §14706, regardless of the interstate or solely intrastate nature of the shipment.
9.2 The filing, processing and disposition of all cargo claims shall be governed by 49 C.F.R. §370 et seq. to the extent not modified herein.
10. No Third Party Beneficiary:
10.1 Shipper, Consignee, and NEED IT NOW DELIVERS are the only parties to this Agreement, and that the Parties do not intend for any third party to specifically benefit from this Agreement.
11.1 Failure of either party to insist upon performance of any of the terms, conditions or provisions of this Agreement, or to exercise any right or privilege herein, or the waiver of any breach of any of the terms, conditions or provisions of this Agreement, 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.
12.1 This Agreement shall not be assignable by either party, in whole or in part, without the written consent of the other party, which consent shall not be unreasonably withheld.
13. GOVERNING LAW/ ATTORNEY’S FEES
13.1 Without regard to the principles of conflicts of law, these terms shall be construed in accordance with, and any and all disputes arising under or out of transportation services performed by NEED IT NOW DELIVERS, shall be governed by federal law where applicable, or otherwise Florida law. Venue shall be in Orange County, Florida.
13.2 By using the services of NEED IT NOW DELIVERS, shipper asserts that it is and does conduct business in Orange County, Florida and is subject to the jurisdiction of Orange County Courts.
13.3 Shipper waives any challenge to personal jurisdiction or venue in court’s located within Orange County, Florida.
14.1 If any provision of these terms and conditions is held to be illegal, invalid or unenforceable under the present or future laws effected, such provision shall be fully severable from the remaining provisions, and it shall not affect the validity of the remaining provisions, which provisions shall be given full force and effect as if the illegal, unenforceable, or invalid provision had not been included. In lieu of an illegal, unenforceable, or invalid provision, there shall be substituted a provision as similar in terms to the illegal, invalid, or unenforceable provision as may be possible and still be legal, valid and enforceable.
15. ENTIRE AGREEMENT AND SUPREMACY
15.1 These terms along with the delivery instructions included on a bill of lading or receipt embody the entire understanding between shipper, consignee, and NEED IT NOW DELIVERS covering the services to be performed hereunder, and there are no other agreements, understandings, conditions, warranties, or representations, oral or implied with reference to the subject matter hereof.
15.2 In the event of any conflict between these terms and conditions and any term or provision in any other document related to or used in the process of arranging or transporting of goods by NEED IT NOW DELIVERS, these terms and conditions shall be superior and shall govern to the extent of the conflict.