Terminos & Condiciones
1. Definitions. For purposes of these Terms and the Bills of Lading, the following definitions apply:
(a) “Bill of Lading” means a non-negotiable commercial shipping document issued by Chain Express that itemizes the Goods that You are shipping, sets forth various other details regarding Your particular shipment of Goods and serves as a receipt upon the Carrier’s acceptance of the Goods. For purposes of these Terms, “Bill of Lading” means only the document issued by Chain Express and not any similarly titled document issued by any other person, including a Carrier.
(b) “Carrier” means a motor carrier operating in interstate commerce pursuant to an operating authority issued by the Federal Highway Administration that has registered with Chain Express as a Carrier and agreed to transport Goods from time-to-time upon receipt and acceptance of a Bill of Lading.
(c) “Goods” means any personal property.
(d) “Freight” means the Goods shipped by You under a Bill of Lading.
(e) “Hazardous Materials” means any substance or material determined by the United States Department of Transportation, from time-to-time, to be capable of posing an unreasonable risk to health, safety or property when transported in commerce. The list of Hazardous Materials is published in 49 C.F.R. 172.101.
(f) “Recipient” means the person to whom Freight is shipped and who is designated as the recipient or consignee on the Bill of Lading.
(g) “Released Value” means the value You specify on the applicable Bill of Lading or such other document that is specifically accepted in writing by an authorized representative of Chain Express.
(h) “You” means the person or entity contracting, directly or indirectly through an authorized agent, with Chain Express for the shipment of Goods to a Recipient.
2. Freight Charges.
(a) Liability for Charges. You are liable for all freight and other charges relating to all shipments of Freight under all Bills of Lading. If charges for a shipment are, or should have been higher, because You, Your agent, the Recipient or the owner of the Freight provided incomplete or incorrect information regarding the Freight or the shipment, including the description of the Freight, You shall be liable to pay Chain Express the correct freight and other charges for the Freight actually shipped.
(b) Payment Terms. Unless You make prior credit arrangements with Chain Express, all freight and other charges must be paid, in full, prior to pickup of the Freight or prior to delivery of the Freight if Chain Express has agreed to accept payment from the Recipient. If You make credit arrangements with Chain Express, all freight and other charges will be due and payable as stated by Chain Express in writing upon credit approval or in another written agreement signed by Chain Express. If no such term is stated or specifically agreed upon, then all charges shall be due and payable within15 days (including holidays) after the invoice date.
(c) Interest and Late Fees. If You do not timely pay all charges, You will also owe a late payment fee of 1.5% per month on all unpaid amounts calculated from the date payment was due and payable. If invoicing was set up for collect or third party billing, the late fee shall be calculated from the date payment was due from such person. Chain Express shall charge You a $25.00 fee for all checks that your bank does not pay for any reason. If You do not timely pay all invoices, Chain Express, in its discretion, may also cancel any credit arrangement it has made with You.
(d) Weighing Freight. Either Chain Express or the Carrier may weigh any Freight. Upon any such weighing, the Carrier and Chain Express will correct, if necessary, the weight set forth on all documents, including any bills of lading, and all freight and other charges will be adjusted according to the actual weight of the Freight. All charges will be computed on the gross weight of the Freight, including all pallets, skids, cradles, bracing, totes, tanks, cylinders, reels, spools, containers, packaging, dunnage and other added weight to the Goods being shipped.
(e) Collect and Third Party Billings. If Chain Express accepts a shipment with collect or third party billing, You agree to pay Chain Express for all charges that Chain Express does not collect from such other person after Chain Express makes one written demand for payment to such person. Chain Express will agree to third party billing only after You and/or the third party make credit arrangements with Chain Express. Chain Express will only accept third party billing only for third parties that have physical (not P.O. Box) addresses in the United States or Canada. If Chain Express inadvertently accepts a shipment with third party billing before You and the third party each reach a credit agreement with Chain Express, Chain Express will contact You, the Recipient and the third party to try to reach an acceptable payment arrangement. If no arrangement is reached, Chain Express may remove the third party billing request and change the shipment to collect billing from the Recipient. If the Recipient fails to pay all charges upon tender of delivery, Chain Express will hold the Freight and notify You of the status. You will be responsible for payment freight, storage and other charges while the Freight is held pending delivery. Chain Express will deliver the Freight upon Your instructions after pre-payment of all charges due hereunder, including the cost of re-delivery to the original Recipient or delivery to a person other than the original Recipient.
(f) Billing Dispute Procedure. You must raise any billing dispute with Chain Express, in writing, within SIXTY (60) days for claims for allowances or incentives and ONE HUNDRED AND EIGHTY (180) days for all other claims, including claims for overpayment or duplicate payments, after You receive the invoice for the shipment involved in Your dispute. Your written notice to Chain Express must include (i) the invoice number, (ii) the Bill of Lading number, (iii) the Recipient’s name and address and (iv) a detailed description of the matter in dispute. If You do not timely raise a dispute in the manner provided above, You waive any right to raise such dispute thereafter in any proceeding. IF YOU ARE NOT SATISFIED WITH Chain Express’S RESOLUTION OF YOUR DISPUTE, YOU MUST FILE A LAWSUIT OR DEMAND FOR ARBITRATION REGARDING SUCH DISPUTE WITHIN ONE (1) YEAR AFTER THE DATE ON WHICH Chain Express GIVES YOU WRITTEN NOTICE OF ITS FINAL RESOLUTION THEREOF.
(g) No Offset. You may not deduct any amount You claim Chain Express owes You for any reason from any amount You owe Chain Express hereunder.
3. Shipment of Freight.
(a) Selection of Carrier. In its sole discretion, Chain Express shall select the Carrier or Carriers to transport the Freight. A Carrier may hire another Carrier to transport a shipment for all or any portion of the route. You agree that any Carrier can take advantage of these Terms and the terms of all applicable Bills of Lading even though You do not have an agreement directly with the Carrier.
(b) Right of Inspection; Refusal of Unsafe Packages. At any time, Chain Express and the Carrier may open and inspect any package, crate or other shipping container that You tender or the shipper tenders for delivery pursuant to these Terms and the applicable Bill of Lading. Chain Express and the Carrier may refuse to accept or may refuse to continue to transport any Goods that, in Chain Express’s or the Carrier’s sole judgment, may soil, taint or otherwise damage other Goods being transported by the Carrier or any equipment or other property owned by Carrier or any other person. Chain Express and the Carrier also reserve the right to refuse to accept any Goods that are, in Chain Express’s or Carrier’s sole judgment, improperly packaged or wrapped for shipment.
(c) Hazardous Materials. Unless Chain Express and Carrier otherwise agree in writing, Chain Express and Carrier will NOT accept any shipment containing Hazardous Materials. Chain Express or Carrier may refuse to accept or may refuse to continue transporting any Goods that include Hazardous Materials even after the Bill of Lading is issued or the Carrier accepts the Goods for shipment.
(d) Water Carriage. If all or any part of the Freight is transported over water in the course of shipment to the Recipient, 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 all other laws applicable to water carriers.
(e) Delivery; Notice. The Carrier shall deliver all shipments with reasonable dispatch. Unless You and Chain Express otherwise agree in writing, the Carriers shall not be bound to deliver a shipment by a certain date or time. Tender of delivery of the shipment at the Recipient’s address constitutes notice of arrival of the shipment. If the Carrier does not actually tender delivery, Carrier shall give written notice of arrival to the Recipient or other person designated on the Bill of Lading on or before the second business day following arrival.
(f) Refused Delivery; Re-Delivery. If a Recipient refuses to accept delivery of a shipment tendered by the Carrier or if the Carrier is unable to deliver the shipment because of Your fault or mistake or that of Your agent, the owner of the Freight or the Recipient (a “Delivery Failure”), Chain Express or the Carrier shall promptly attempt to notify You or such other person designated on the Bill of Lading of such event by telephonic or electronic communication. If a Delivery Failure occurs, the Carrier, at its option, may attempt re-delivery to the Recipient or may require You to make alternative arrangements to deliver the Freight to the Recipient. Immediately after a Delivery Failure, the Freight shall be deemed to be in storage. The Carrier may charge You reasonable storage charges beginning with the day after the Delivery Failure. You shall be liable for all charges for re-delivery, alternative delivery and storage of the Freight, which Chain Express may, in its discretion, require You to pay before the Freight is released from Storage.
(g) Storage of Freight. Chain Express’s and the Carrier's liability for any Freight in storage shall be that of a warehouseman whether You, Your agent, the owner of the Freight or the Recipient place the Freight in storage or it is deemed to be in storage under the terms hereof. The Carrier may store the affected Freight at any location, including at a public warehouse, that provides reasonable protection of the Freight against loss, destruction or damage. If the Carrier places the Freight in public storage, You hereby authorize Carrier to incur storage charges in Your name or in its name as Your agent.
(a) Liability. The Carrier shall be liable to You or any other person with respect to any shipment of Freight only as specifically provided in these Terms or the terms of applicable Bills of Lading or other written agreements between You and Chain Express. Subject to the other limitations set forth herein, the Carriers shall be liable to You only for the actual damage that You suffer because of damage to, or the loss or destruction of, the Freight.
(b) Risk of Loss Following Delivery. After a Carrier has unloaded the Freight at the location directed by either You or the Recipient, the Carrier shall not bear any risk of loss for the Freight.
(c) Limitations Because of Intervening Forces or Events. Neither Chain Express nor any Carrier shall be liable to You or any other person for any loss or damage You or they suffer that is caused by, or arising from, Chain Express’s or any Carrier’s non-performance or delay in performance where such non-performance or delay is caused by, or arises out of (i) instructions to Chain Express or any Carrier from You, Your agent, the Recipient or the owner of the Freight to stop, hold or delay shipment or delivery of the Freight, (ii) faulty or impassible roadways or bridges or ferries which cannot handle the capacity of Carrier’s cargo, (iii) any defect in the Freight, (iv) any foreign, federal, state or local laws, ordinances, rules or regulations or enforcement thereof, (v) improper or incomplete paperwork that You, Your agent, the Recipient or the owner of the Freight provides to Chain Express or the Carrier or (vi) any force majeure event, including, without limitation, invasions, insurrections, riots, acts of war or terrorism, strike or other labor dispute, fire, epidemic, flood, earthquake, authority of law, acts of God, failure of equipment owned by persons other than Chain Express or Carrier, failure of telecommunications lines, lack of Internet access, sabotage or governmental action. If any Carrier or other supplier or independent contractor of Chain Express notifies Chain Express that its failure to perform or its delay in performance is the result of any of the foregoing items, Chain Express shall be entitled to rely on the existence of any of the foregoing items to excuse its non-performance or delay in performance and none of You, Your agent, the Recipient, the owner of the Freight nor any other person may challenge the occurrence, existence or applicability of any of the foregoing items in any proceeding.
(d) Limitation of Liability. Neither Chain Express nor any Carrier shall be liable to You or a Recipient for indirect, incidental, special or consequential damages arising out of the transportation of the Freight or any other services provided by Chain Express or a Carrier even if Chain Express or the Carrier is notified thereof before the shipment is made. Except as otherwise provided herein, the maximum aggregate amount of actual damages for which Chain Express and the Carrier may be liable to You with respect to the loss or destruction of, or damage to, Freight shipped is the lesser of (a) the fair market value of the Freight shipped and (b) the Released Value. Unless You and Chain Express specifically agree in writing to the contrary and a Released Value of the Goods is specifically stated on the Bill of Lading and is accepted by Chain Express in writing, neither Chain Express nor Carrier shall be liable for any loss or destruction of, or damage to, documents, money, artwork or any Goods of extraordinary value. EXCEPT FOR THE LOSS, DESTRUCTION OR DAMAGE TO FREIGHT, Chain Express’S LIABILITY TO YOU FOR ALL DAMAGES YOU SUFFER THAT ARISE OUT OF THE TRANSPORTATION OF THE FREIGHT IS LIMITED TO THE FREIGHT AND OTHER CHARGES PAID BY YOU TO Chain Express. Bills of Lading or bills of lading that add or change the Released Value of any Freight after shipment of the Freight shall not be binding on Chain Express or any Carrier unless specifically approved by an executive officer of Chain Express.
(e) Claim Procedure. If You have incurred damages from the loss or destruction of, or damage to, Freight shipped under these Terms or You have incurred any other damage related to any such shipment, You must do the following:
(i) You must file a written claim with the carrier. Your claim must include (i) the invoice number, if any, (ii) the Bill of Lading number, (iii) the Recipient’s name and address and (iv) a description, in reasonable detail, of all losses that You have suffered. You must also include a copy of the original Bill of Lading, original freight bill, and the original invoice for the goods shipped. You must cooperate with the Carriers and their insurance carriers in their investigation of the claim You have made.
(ii) If Your claim relates to Freight that was actually delivered, You must make Your claim within nine (9) months of the delivery date or within nine (9) months after delivery to the applicable port of export if the Freight was exported. If Your claim relates to Freight that was not delivered, You must make Your claim within nine (9) months after a reasonable time for delivery has elapsed.
(iii) IF YOU ARE NOT SATISFIED WITH RESOLUTION OF YOUR CLAIM BY THE CARRIERS, YOU MUST FILE A LAWSUIT OR DEMAND FOR ARBITRATION REGARDING SUCH CLAIM WITHIN ONE (1) YEAR AFTER THE DATE ON WHICH Chain Express AND/OR CARRIER GIVE YOU WRITTEN NOTICE OF THEIR FINAL RESOLUTION OF YOUR CLAIM.
NEITHER Chain Express NOR A CARRIER WILL BE LIABLE TO YOU FOR ANY DAMAGES UNLESS YOU FOLLOW ALL OF THE FOREGOING CLAIM PROCEDURES. Notwithstanding any liability to You, Chain Express and/or the Carrier shall have the full benefit of any insurance maintained by You with respect to the Freight and any damages awarded to You shall be offset to the extent You receive any proceeds from such insurance.
5. Fuel Surcharge. Chain Express reserves the right to institute a fuel surcharge on all shipments without prior notice. Chain Express may apply this surcharge from time-to-time for such periods as Chain Express determines in its sole discretion. Any fuel surcharge instituted by Chain Express shall apply to all Bills of Lading accepted by Chain Express after the effective date of such surcharge.
6. Indemnification. You agree to indemnify, defend and hold harmless Chain Express and its directors, officers, employees, agents and affiliates (collectively, the “Indemnified Parties”) from and against all claims, causes of action, costs, damages, losses and any other expenses, including reasonable attorneys’ fees, incurred by one or more of the Indemnified Parties as a result of Your acts or omissions in connection with any shipment of Freight subject to these Terms and/or a Bill of Lading.
7. Resolution of Disputes.
(a) Forum. Except as provided in Section 7(b) below, You hereby consent to the exclusive jurisdiction of any state or federal court having jurisdiction in Johnson County, Kansas over all disputes arising out of these Terms, any Bill of Lading or any other transaction between you and Chain Express. By your acceptance of these Terms, you hereby waive any objection to personal jurisdiction or venue of the courts described above and agree not to assert any defense based on lack of personal jurisdiction or improper venue in any proceeding commenced in such courts.
(b) Arbitration. All controversies and claims in excess of $25,000.00 that arise out of, or relate to, these Terms, any Bill of Lading or any other transaction between You and Chain Express shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Any court having jurisdiction over the parties may enter a judgment on the award rendered in the arbitration proceeding. The parties shall hold all arbitration proceedings in Overland Park, Kansas or Kansas City, Missouri. You and Chain Express also agree that, in addition to all other remedies, the arbitrators shall be empowered to enforce These Terms and all Bills of Lading by specific performance, injunction or other equitable remedies, including those permitted under the American Arbitration Association Optional Rules for Emergency Measures of Protection.
(c) Reimbursement of Costs and Expenses. If Chain Express prevails, in whole or in part, You will reimburse Chain Express for all of the costs and expenses Chain Express incurs in connection with collecting any amount due under, or resolving any other dispute with You involving, these Terms, a Bill of Lading or any other transaction between You and Chain Express, including its reasonable attorneys’ and witness fees and court costs. The amount of such fees costs and expenses shall be determined by the arbitrator if an arbitration proceeding is commenced or by a court having jurisdiction in Johnson County, Kansas if a proceeding is commenced in court or if no proceeding is commenced at all.
8. General Matters.
(a) Governing Law. Except to the extent preempted by federal law, these Terms and the terms of all Bills of Lading shall be construed under and governed by the laws of the State of Kansas, excluding its choice of law statutes, court decisions and principals.
(b) Waiver; Amendment. Chain Express’s agreement to any waiver of these Terms or the terms of any Bill of Lading shall be valid only if set forth in a writing signed by an authorized officer or agent of Chain Express. A waiver by You or Chain Express of any provision of these Terms or of any Bill of Lading or of any breach thereof shall be a waiver of only said specific provision or breach and shall not be deemed a waiver of any other provision or any future breach. Chain Express may amend these Terms at any time in its sole discretion, however, such amendment shall be effective only with respect to those Bills of Lading issued after the date of such amendment. These Terms shall not be amended except as set forth in this Section.
(c) Severability. If any provision of these Terms or the terms of any Bill of Lading is determined by to be invalid or unenforceable by an arbitrator or a court having jurisdiction over the parties and the subject matter hereof, the remainder of the Terms and the terms of all applicable Bills of Lading shall remain in full force and effect and the provision held to be invalid or unenforceable shall remain enforceable and valid to the greatest extent permitted by law with respect to other persons, under other circumstances or in other jurisdictions. These Terms and the terms of all applicable Bills of Lading shall be construed and enforced as if any such invalid or unenforceable provisions was not contained therein.
(d) Binding Effect. These Terms and the terms of all Bills of Lading shall be binding upon and inure to the benefit of You. Your heirs, successors and assigns and Chain Express and its successors and assigns, subject to all limitations on assignment contained herein.