Terms & Conditions
Transportation and Consolidation Services, Inc. (dba Sonwil Logistics), and heretofore referred to as SONWIL, is licensed as a Property Broker by the Federal Motor Carrier Safety Administration (FMCSA) in Docket Number USDOT 2212083 or MC 162363, or by appropriate State agencies, and as a licensed broker, arranges for freight transportation. A copy of SONWIL’s authority and a copy of SONWIL’s Surety Bond is available upon request.
SHIPPER, to satisfy some of its transportation needs, desires to utilize the services of SONWIL to arrange for transportation of SHIPPER’s freight.
Unless expressly superseded by a written contract signed by an officer of SONWIL and SHIPPER, these TERMS AND CONDITIONS shall govern property brokerage service (which, for purposes hereof, shall mean the arrangement of motor carrier transportation to be performed by third party motor carriers (“SERVICING CARRIERS”) provided by SONWIL (“SERVICES”)), including SERVICES provided pursuant to a load confirmation. Any terms and conditions on documents exchanged between the parties other than these herewith, as revised from time to time, shall not apply to any SERVICES and shall not be binding on or applicable to SONWIL. SHIPPER understands and agrees that SONWIL functions as an independent entity, and not as a carrier, in selling, negotiating, and arranging for transportation for compensation, and that the actual transportation of shipments tendered to SONWIL shall be performed by SERVICING CARRIERS. SONWIL and SHIPPER represent and warrant that their relationship is that of independent contractors and that the respective employees are under their respective exclusive management and control. Nothing in this AGREEMENT shall be deemed to require SONWIL to provide SERVICES upon request of SHIPPER and SONWIL reserves the right to accept or decline, in its sole discretion, any particular request for SERVICES.
2. COMPLIANCE WITH LAW
SONWIL represents and warrants that it is duly and legally qualified to operate as a property broker and to provide SERVICES contemplated herein. SONWIL agrees to comply with all applicable federal, state and local laws regarding the provision of such SERVICES. SHIPPER warrants and represents that it is authorized to tender the cargo in question to SONWIL and that all descriptions of the cargo are complete, accurate, and include all information required by applicable law, rules or regulation. Without in any way limiting the foregoing, if SHIPPER tenders for transportation cargo designated as hazardous materials or dangerous goods, SHIPPER shall be solely responsible for complying with any and all applicable laws, rules, regulations, or conventions with respect to classifying, tendering, packaging and labeling such cargo and must provide notice of any such cargo at the time a request for SERVICES is first initiated by SHIPPER to SONWIL.
When requesting service with respect to any shipment containing food that is subject to regulations of the Food and Drug Administration (“FDA”) (hereinafter, “FOOD”), SHIPPER shall be solely responsible for identifying handling obligations necessary for the safe and sanitary handling of FOOD and, at the time of the initial request for SERVICES with respect to the individual shipment, will provide written notice (each a “FOOD HANDLING NOTICE”) to SONWIL that the consignment contains FOOD which FOOD HANDLING NOTICE must also include any special instructions or handling requirements to be imposed on the SERVICING CARRIER. Any such FOOD HANDLING NOTICE shall specifically identify the consignment to which it relates and in no event shall any FOOD HANDLING NOTICE apply to more than one shipment regardless of whether SONWIL confirms receipt of a FOOD HANDLING NOTICE purporting to apply to multiple conveyances. In no event will SONWIL have any obligation to provide any instructions to the SERVICING CARRIER with respect to cargo other than those expressly noted by the SHIPPER on a load confirmation provided by SONWIL to SHIPPER and SONWIL has no obligation to comply with or pass on to the SERVICING CARRIER any handling instructions received after the initial request for SERVICE. If SHIPPER does not provide a FOOD HANDLING NOTICE, SHIPPER warrants and represents that the cargo is appropriately packaged to ensure safe and sanitary transportation without the need for any specialized handling by the SERVICING CARRIER. SHIPPER acknowledge and agrees that SONWIL’s sole obligation with respect to food handling and food safety is to pass through to the SERVICING CARRIER instructions contained in a FOOD HANDLING NOTICE.
SONWIL agrees to arrange for transportation of SHIPPER’s freight pursuant to the terms and conditions stated herewith and in compliance in all material respects with all federal, state and local laws and regulations relating to the brokerage of the freight. SONWIL’s responsibility shall be limited to arranging for, but not actually performing, transportation of SHIPPER’s freight.
SHIPPER agrees to tender a minimum of one (1) shipment to SONWIL, and SONWIL agrees to arrange for the transportation of said shipment, as well as any other shipments offered by SHIPPER as accepted by SONWIL. SHIPPER is not restricted from tendering freight to other brokers, freight forwarders, third party logistics providers, or directly to motor carriers. SONWIL is not restricted from arranging transportation of freight for other parties.
SHIPPER shall be responsible to SONWIL for timely and accurate delivery specifications and description of the cargo, including, but not limited to, dimensions, weight, temperature, any special handling or security requirements, and employing reasonable security protocols to reduce the risk of cargo theft.
5. PAYMENT AND CHARGES
SONWIL will charge and SHIPPER will pay the rates and charges set forth in a mutually agreed upon AGREEMENT, or if no such rates are in effect for services rendered, then the rates and charges established in a load confirmation provided by SONWIL without offset. SHIPPER agrees to pay SONWIL without offset and within thirty (30) days of receiving the invoice, with interest accruing monthly at a rate of one percent (1%) per month on any unpaid balance. SHIPPER shall also be liable for any expenses, including attorney fees, SONWIL incurs in collecting its rates and charges. If any information provided by SHIPPER is inaccurate or incomplete, SHIPPER acknowledges and agrees that agreed upon rates may, in SONWIL’s sole discretion, be revised to reflect the goods actually tendered. SHIPPER shall also be responsible for any additional accessorial charges imposed by the SERVICING CARRIER which were not anticipated by SONWIL at the time SONWIL arranged for services with SERVICING CARRIER or which were not otherwise included in the rate set forth in the load confirmation. For purposes of clarity, rates for accessorial charges will also apply to services performed by SONWIL. In no event will SONWIL have any responsibility for, and SHIPPER will defend, indemnify, and hold SONWIL harmless from, and will pay and reimburse, any charges imposed by third parties with respect to use of equipment in which cargo tendered by, to or on behalf of SHIPPER is or has been laden, or for charges assessed with respect to storage or handling of any such equipment, including, but not limited to, charges assessed by steamship lines, rail carriers, rail terminal operators, marine terminal operators or port authorities. Without limiting the generality of the foregoing, SONWIL shall have no liability for any such charges arising from or related to port congestion, lack of equipment availability, labor shortages, or other situations impacting port or intermodal transportation operations. SONWIL shall have a possessory lien on all cargo, and any proceeds therefrom, in its, or in its SERVICING CARRIER’s, dominion or control for the payment of any and all amounts due and owing from SHIPPER or with respect to services rendered at the request, or for the benefit of, SHIPPER. In addition, to the extent not prohibited by applicable law, SONWIL will have a general lien on any cargo under its, or its SERVICING CARRIER’s, dominion or control, and any proceeds thereof, for any and all amounts due and owing from SHIPPER or with respect to services rendered at the request, or for the benefit of, CUSTOMER, regardless of whether those amounts relate to cargo or proceeds against which the general lien is enforced.
WARRANTIES AND LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES REGARDLESS OF WHETHER THE PARTY TO BE CHARGED HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF SOWIL WITH RESPECT TO ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO SERVICES PROVIDED PURSUANT TO THESE TERMS AND CONDITIONS WILL BE FOR THE AMOUNT CHARGED BY SONWIL WITH RESPECT TO THE SERVICES SPECIFICALLY GIVING RISE TO SUCH CLAIMS OR DAMAGES. SHIPPER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS SONWIL FROM AND AGAINST, AND SHALL PAY AND REIMBURSE SONWIL FOR, ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, FINES, JUDGMENTS, PENALTIES AND AMOUNTS (INCLUDING REASONABLE ATTORNEY FEES) ARISING FROM OR RELATED TO: (i) BREACH BY CUSTOMER OF THESE TERMS AND CONDITIONS; (ii) THE NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES; (iii) VIOLATION BY SHIPPER, ITS AGENTS, CONTRACTORS OR EMPLOYEES OF ANY APPLICABLE LAWS, RULE OR REGULATION; OR (iv) SHIPPER’S FAILURE TO PROVIDE, OR SONWIL’S OR THE SERVICING CARRIER’S COMPLIANCE WITH OR RELIANCE ON, INSTRUCTIONS, DIRECTIONS, OR REQUEST OF CUSTOMER. THE FOREGOING NOTWITHSTANDING, SHIPPER’S OBLIGATION TO HOLD HARMLESS, DEFEND, INDEMNIFY, PAY AND REIMBURSE SHALL NOT APPLY TO THE EXTENT ANY CLAIM IS CAUSED BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SONWIL. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. SONWIL IS NOT LIABLE FOR THE CONSEQUENCES OF IDENTIFY THEFT OR FRAUDULENT CONDUCT OF THIRD PARTIES, INCLUDING UTILIZING THE SERVICES OF ENTITIES REPRESENTING THEMSELVES TO BE SERVICING CARRIERS OR REPRESENTATIVES THEREOF.
7. SERVICING CARRIERS
SONWIL’s sole responsibility with respect to selection and retention of SERVICING CARRIERS is to make reasonable efforts to place SHIPPER’s loads with responsible SERVICING CARRIERS: (i) authorized to perform the services required by SHIPPER; (ii) which such carriers do not hold an “unsatisfactory” or unfit safety rating from the U.S. Department of Transportation; and (iii) that possess all insurance coverages required by applicable law. SONWIL makes no express or implied warranties or guarantees concerning delivery time or the locating of a SERVICING CARRIER to provide the transportation services requested by SHIPPER.
8. RECEIPTS AND BILLS OF LADING
Shipments tendered hereunder may be evidenced by a bill of lading or similar transportation document. In no event will SONWIL being shown as the “carrier” on any such document change SONWIL’s status as a property broker. Upon request of CUSTOMER, SONWIL shall request that SERVICING CARRIERS obtain a delivery receipt from the consignee, showing the products delivered, the condition of the shipment and the date and time of such delivery. SHIPPER waives access to SONWIL’s records pursuant to 49 C.F.R. Part 371.
SONWIL shall comply with all insurance and bonding requirements imposed upon it by law, including its obligation to maintain a surety bond.
10. CARGO LOSS, DAMAGE, OR SHORTAGE
SHIPPER acknowledges that SERVICING CARRIERS may limit their liability for cargo loss, damage or delay. It will be SHIPPER’s responsibility to insure product in-transit and SHIPPER acknowledges that if SHIPPER wishes to declare excess value higher than the SERVICING CARRIER’s limitation, SONWIL will have no responsibility to do so and it will be SHIPPER’s responsibility to do so directly with the SERVICING CARRIER. SONWIL may facilitate claims filing and processing with the SERVICING CARRIER if SHIPPER submits to SONWIL, within six (6) months of the date of delivery, a written claim, fully supported by all relevant documentation, including but not limited to the signed delivery receipt, listing the nature and cause of the claim for cargo damage. SONWIL may, in its sole discretion and without liability to SHIPPER, discontinue pursuit of claims with the SERVICING CARRIER if such claim is not resolved within sixty (60) days of receipt by SONWIL or if SHIPPER, in SONWIL’s sole discretion, fails to cooperate with SONWIL in filing of claims with the SERVICING CARRIER. SHIPPER acknowledges and agrees that failure or alleged failure by the SERVICING CARRIER to comply with shipment handling instructions, or a broken trailer seal, shall not result in any presumption that food has been adulterated, contaminated, or otherwise rendered unfit for its intended purpose, nor otherwise be grounds for rejection of a shipment or filing of a claim for cargo loss and damage without proof of actual loss or damage. SONWIL shall have no liability for cargo loss, damage, or shortage except to the extent such claims are caused by SONWIL’s negligent acts or omissions, in which case, SONWIL’s liability shall be limited to the charges assessed by SONWIL and paid by SHIPPER with respect to the goods at issue. SHIPPER is responsible for filing a claim with SONWIL alleging SONWIL’s liability for cargo loss and damage within six (6) months of the date of delivery of the cargo in question (or, if none, within six (6) months of the date cargo should have been delivered). Failure to do so will result in an absolute bar to any such claim and will relieve SONWIL of any and all liability with respect thereto. In no event will SONWIL have any liability arising from or related to the SERVICING CARRIER’s refusal to accept full value liability or the SERVICING CARRIER otherwise limiting its liability for cargo loss and damage. SONWIL shall be under no obligation to arrange, and SERVICING CARRIER shall be under no obligation to provide, service in accordance with any set pick-up or delivery schedule; SONWIL’s sole obligation is to ensure SERVICING CARRIERS provide services with reasonable dispatch. Any lawsuit arising from such claim must be commenced within eighteen (18) months of denial of all or any part of such claim.
SHIPPER acknowledges and agrees that the sole liability of SONWIL with respect to loss, damage or delay to cargo shall be as set forth in this provision and SHIPPER warrants and represents that if it is not the owner of such cargo, SHIPPER holds authority from such owner to bind the owner to the provisions of these Terms and Conditions.
11. RAIL TRANSPORTATION
Notwithstanding anything in these Terms and Conditions to the contrary, in the event, whether upon request of SHIPPER or in SONWIL’s discretion, any portion of the underlying transportation is performed by a rail carrier (“RAIL CARRIER”), SHIPPER acknowledges and agrees that the RAIL CARRIER services, including, but not limited to, charges, liability (including limitations) for loss or damage to cargo, and terms and conditions of services are governed by tariffs, circulars or similar documents maintained by the RAIL CARRIER or other third party logistics provider arranging such RAIL CARRIER services (the “RAIL CONDITIONS”). SHIPPER acknowledges and agrees that SHIPPER, and not SONWIL, shall be deemed as a shipper or beneficial cargo owner for purposes of application of the RAIL CONDITIONS. As between SHIPPER and SONWIL, SHIPPER shall be solely responsible for: (a) proper packing of any and all shipments; (b) blocking and bracing all such cargo in accordance with the RAIL CONDITIONS, as well as in accordance with industry standards (including, but not limited to, those imposed by the American Association of Railroads via Circular 43, Rules Governing the Loading, Blocking and Bracing of Freight in Closed Trailers and Containers for TOFC/COFC Service); and (c) compliance with any and all obligations or charges imposed by the RAIL CARRIER with respect to tender of cargo for rail and/or intermodal transportation, including but not limited to any and all charges for accessorial services imposed by RAIL CARRIERS whether or not included in the initial rates agreed upon by the parties.
12. HAZARDOUS MATERIALS
SHIPPER shall comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR §172.800, §173, and § 397 et seq. to the extent that any shipments constitute hazardous materials. SHIPPER is obligated to inform SONWIL immediately if any such shipments constitute hazardous materials. SHIPPER shall defend, indemnify and hold SONWIL harmless from any penalties or liability of any kind, including reasonable attorney fees, arising out of SHIPPER’s failure to comply with applicable hazardous materials laws and regulations.
13. INDEPENDENT CONTRACTOR
The relationship of the PARTIES to each other shall at all times be that of independent contractors. None of the terms of this AGREEMENT, or any act or omission of either PARTY shall be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, or employer/employee relationship between the PARTIES. Each PARTY shall provide sole supervision and shall have exclusive control over the actions and operations of its employees, and agents used to perform its services hereunder. Neither PARTY has any right to control, discipline or direct the performance of any employees, or agents of the other PARTY. Neither PARTY shall represent to any PARTY that it is anything other than an independent contractor in its relationship to the other PARTY.
Unless the PARTIES notify each other in writing of a change of address, any and all notices required or permitted to be given under this Agreement 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 to the addresses as follows:
Transportation and Consolidation Services, Inc.
(dba Sonwil Logistics)
Attn: Jason Ickert, President
Address: 2732 Transit Road
West Seneca, NY 14224
15. FORCE MAJEURE
Neither PARTY shall be liable to the other for failure to perform any of its obligations 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 SHIPPER or SONWIL, provided that the PARTY so prevented uses its best efforts to perform and provided further, that such PARTY provide reasonable notice to the other PARTY of such inability to perform. Performance obligations of the PARTIES may be extended by the amount of delay caused by Force Majeure events, upon mutual agreement.
16. CHOICE OF LAW AND VENUE
All questions concerning the construction, interpretation, validity and enforceability of these TERMS AND CONDITIONS, whether in a court of law or in arbitration, shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule that would cause the laws of any other jurisdiction to apply.