ABF Multimodal Tariff MM-100 is available upon request

Transcription

ABF Logistics, Inc.
also doing business as
ABF Multimodal, Inc.
and
ABF Supply Chain Solutions, Inc.
(Collectively, “
ABF Logistics”
)
ABF Logistics Tariff MM-100 Series
Rules, terms, conditions and certain pricing
for ABF Logistics a transportation Property Broker
FMCSA Docket Number MC-374658
Issued: November 18, 2015
Effective: November 18, 2015
Issued by:
ABF Logistics, Inc.
Attn: President
6201 Rogers Avenue, Suite J
Fort Smith, AR 72903
1-877-279-8090
© 2015 ABF Logistics, Inc. All rights reserved. All service marks appearing in this Tariff, including ABF
Logistics℠, ABF Multimodal℠and ABF Supply Chain Solutions℠are the property of ArcBest Corporation
and/or its subsidiaries.
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Tariff MM-100 Series
Table of Contents
Sections/Provisions
Pages
I.
II.
III.
Introduction
A.
Definitions
B.
Understandings
C.
Reference to Tariffs, Items, Rules, Charges, Etc.
D.
Governing Publications
E.
Bills of Lading
F.
Services Standards
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6
8
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General Services Rules, Provisions, Terms and Conditions
A.
Application
B.
Charges, Conditions and Payment Terms
C.
Carrier Commodity Liability Limitations for Loss/Damage
(excluding Cross-Docking and Warehousing Services)
D.
Commodity Claims Process for a Carrier (excluding
Cross-Docking and Warehousing Services)
E.
Warehousing Liability Limitations for Property Loss/
Damage (including Cross-Docking Services but excluding
Carrier Services)
F.
Notice of Property Claim and Filing of Claim and/or
Lawsuit (for Warehousing or storage related services)
G.
Optional Excess Liability Coverage
H.
Commodity Liability Exclusions
I.
Prohibited Commodities
J.
General Commodity Provisions
K.
Subrogation and Release
L.
Services Associated Costs
M.
Warehousing Services Provisions
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Warehousing
A.
Acceptance
B.
Shipping
C.
Tender for Storage
D.
Right to Store Property/Lawfully in Possession
E.
Storage Period and Charges
F.
Transfer, Termination or Storage Removal of Property
G.
Handling
H.
Delivery Requirements
I.
Special Services
J.
Bonded Storage
K.
Minimum Charges
L.
Liens
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M.
N.
O.
P.
Q.
R.
S.
IV.
V.
Hazardous Property
Warehouse Payment of Invoices
Collect Shipment Guarantee
Accurate Information
Negation Indirect Damages
Additional Terms and Conditions
Documents of Title
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Cross-Docking Services
A.
Applicable Rate Quotation
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Reconsignment, Diversion or Dynamic Rerouting
A.
Definitions of Reconsignment, Diversion or Dynamic Rerouting
B.
Conditions
C.
Charges
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VI.
Customs
A.
Shipments Awaiting Customs Release
B.
Export or Import Shipments
C.
Puerto Rico (Electronic Export Information)
D.
Customs Fees
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VII.
Other Terms and Conditions
A.
Notations
B.
Force Majeure
C.
Impracticable Operations
D.
Indemnification
E.
Other Limitations
F.
Assignment; Integration; Titles, Headings and Captions
G.
Warranties
H.
Authorized Signatures for Tariff Modifications/Electronic
Signatures
I.
Confidentiality
J.
Hazardous Materials
K.
Default and Remedies
L.
Waivered Tariff Provisions
M.
Severability
N.
Survivability
O.
Governing Law and Venue
P.
Class Action Lawsuit Wavier
Q.
Statute of Limitation Period
R.
Contract Language
S.
Employee Solicitation Prohibited
T.
Non-Exclusive
U.
Rules of Construction
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VIII.
IX.
Website Terms and Conditions of Use
A.
Understanding
B.
Use
C.
abfmultimodal.com Registration
D.
Changes to abfmultimodal.com
E.
Term
F.
Ownership
G.
Disclaimer of Warranty
H.
Limitation of Liability
I.
Indemnity
J.
Links to other Websites
K.
Privacy Policy
L.
Export
M.
Controlling Law, Venue, Severability and Waivers
Privacy
A.
Questions and Answers
B.
Privacy Policies of other Websites
C.
Information Disclosure to Third Parties
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I. Introduction
A.
Definitions
1.
The words “
you,”“
your,”“
yourself”and “
customer”refer to who has requested an
estimate of service charges and/or reserved, purchased or received services
through us.
2.
As used in this tariff, the words "we," "us," "our," “
ABF Logistics,”“
ABF Multimodal,
Inc.,”and “
ABF Supply Chain Solutions, Inc.,”mean ABF Logistics, Inc., an
Arkansas corporation.
3.
The term “
Personnel”means ABF Logistics and its parent company, and their
owner(s), officers, directors, members, employees, independent contractors,
representatives, affiliates, agents, subsidiaries, assigns, any suppliers and/or
services providers that ABF Logistics engages on your behalf.
4.
The term “
equipment”means any provided tractor, trailer, ramp, bulkhead or any
other equipment used to perform transportation services for you under this Tariff.
5.
The terms “
goods,”“
commodity,”“
commodities,”“
cargo”or “
property”means every
species of personal property you provide to us, so we can arrange for services you
have requested or which are required.
6.
The terms “
pricing schedule,”or “
rate quotation”shall mean any document sent by
ABF Logistics to the customer that includes or references (1) services to be
performed, (2) the applicable pricing, and (3) certain terms and conditions applicable
to the customer for services arranged by ABF Logistics and to be performed for the
customer.
7.
The term “
service charges”means all rates, charges, accessorial, fuel surcharge,
special charges, Custom fees, duties, taxes, and any other applicable fees and
charges owed by you for services we arranged and/or performed for you which are
contained or referenced herein.
8.
The term “
services”or “
service”means any services ABF Logistics arranges and/or
performs for you, including, but not limited to, transportation, warehousing, crossdocking, or any form of logistics, support or any other services.
9.
The term “
standard trailer”or “
van”means a trailer of not less than 35 and not
greater than 53 feet in length.
10.
The term “
Tariff”means the ABF Logistics, Inc.’
s tariff MM-100 Series including all
addenda, appendices, schedules and/or exhibits thereto.
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11.
The term “
trailer”means any standard trailer, van, pup, doubles trailer, flatbed, step
deck, lowboy, intermodal container, container, or any other similar non-power
equipment used by the carrier to transport or move freight or household goods from
one location to another.
12.
The term “
truck”or “
vehicle”means any vehicle or combination of vehicles handled
as one unit, propelled or drawn by a single power unit and used on highways in the
transportation of property.
B.
Understandings:
1.
ABF Logistics, Inc. also doing business as ABF Multimodal, Inc., and ABF Supply
Chain Solutions, Inc. (hereinafter “
ABF Logistics”
), is a property broker of
transportation services and operating under authority number MC-374658B issued
by the United States Department of Transportation (“
USDOT”
) through its agency
the Federal Motor Carrier Safety Administration (FMCSA). Under ABF Logistics’
FMCSA property broker authority, it can provide transportation brokerage
services by sourcing a variety of equipment types including van both over the road
and intermodal, flatbed, air-ride, stepdeck, temperature-controlled and specialized
equipment, coupled with advanced technology and carrier and customer-based
web tools to accomplish pickup, monitoring, transportation, delivery and
performing specialized services. ABF Logistics arranges transportation services
under this Tariff as a broker and as a non-agent independent contractor to you.
Carrier(s) or other service providers hired by ABF Logistics to perform services for
you are only a non-agent independent contractor to ABF Logistics.
2.
ABF Logistics also arranges warehousing, cross-docking and/or other services for
you under this Tariff. ABF Logistics performs these services as a non-agent
independent contractor. Warehouseman, cross-docking and other service
providers hired by ABF Logistics for you are only non-agent independent
contractors of ABF Logistics.
3.
Where rail services are used in arranging services for you, such services are
subject to all applicable railroad service directories and the Association of
American Railroads (AAR) rules that outline the proper packaging, blocking and
bracing of a shipment.
4.
You understand when we arrange services on your behalf, you may be subject to
additional terms and conditions contained in the applicable service provider tariffs,
other contractual and/or pricing documents. The terms and conditions in such
documents are hereby incorporated herein.
5.
This Tariff is available for inspection by any person during our normal business
hours at our facility at 6201 Rogers Avenue Suite J, Fort Smith, AR 72903, or at
www.abfmultimodal.com. Copies of this Tariff, specific provisions of it, or
subscriptions to it shall be provided upon request to any interested person upon
payment of required costs for copies of the Tariff, for copies of specific provisions
thereof, or for an annual subscription.
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6.
ABF Logistics reserves the right to modify or change this Tariff at any time and any
such changes will become effective when published as part of this Tariff. However,
the tariff terms and conditions that were effective when the services were arranged
shall control and govern such shipment. Services are arranged when the Pricing
Schedule and/or Rate Quotation is provided to you.
7.
ABF Logistics reserves the right to refuse to arrange any services based upon its
condition, packaging, inherent risk, likelihood to damage or delay other freight, its
difficulty in loading or stowage, its likelihood to suffer damage or loss, or for any
other reason.
8.
For carrier services, you will receive two (2) hours of free time at both the shipment
origin and destination, but when the carrier driver is delayed past such free time,
detention charges will be applicable. Once a carrier driver is dispatched on your
load hereunder if shipment cancellation occurs within twenty-four (24) hours of the
scheduled pickup time, you will be charged a truck ordered but not used fee.
9.
By accepting services hereunder, you agree to the terms and conditions contained
in the following documents, and the following order of precedence will apply if such
documents have inconsistent or conflicting provisions: (1) ABF Logistics Pricing
Schedule or Rate Quotation; (2) ABF Logistics, Inc. Tariff MM-100 Series,
including its addenda, appendices, schedules and exhibits; and (3) the issued ABF
Logistics Bill of Lading. All the foregoing documents are hereby incorporated
herein this Tariff.
10.
You represent and warrant that you possess the legal ability and authority to create
a binding legal obligation and the full and unfettered legal right, authority and ability
to engage us for services.
11.
You shall not demand, in part or whole, and hereby waive any right to receive
information, including brokerage commission, and any other information pursuant
to 49 C.F.R. Part 371 et seq.
12.
You and ABF Logistics shall be responsible for the hiring, discipline, discharge and
payment of their respective employees. Each of us shall secure all necessary
permits, licenses and authorities required for our respective employees and
provide for payment of all local, state, provincial and federal payroll and other
taxes, its workers’compensation, all employee benefit contributions, insurance,
taxes, contributions for unemployment insurance, social security and old age
benefits, and any other related employee expenses required for our respective
employees’
employment.
13.
You agree that if you, a shipper, a consignee or anyone else inserting ABF
Logistics’name as the carrier, warehouseman, shipper or consignee on any
document shall be for such individual’
s or entity’
s convenience only and shall not
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change ABF Logistics’status as a property broker or other applicable non-carrier
authority.
14.
You agree to fully comply with all applicable international, federal, provincial, state
and local laws, ordinances, orders, rules and regulations relating to the services to
be arranged, managed and/or performed under this Tariff.
15.
You shall be responsible to us for timely and accurate delivery specifications and
description of the commodities, including, but not limited to, dimensions, weight,
any special handling or security requirements, and employing reasonable security
protocols to reduce the risk of commodity theft.
16.
ABF Logistics, and the carrier and service providers are not offering time-sensitive
services, and not bound to provide services by a particular schedule, or in time for
a particular market, but only representing to provide services with reasonable
dispatch or non-time sensitive manner.
C.
Reference to Tariffs, Items, Rules, Charges, Etc.
1.
Wherever reference is made in this Tariff, such reference also includes all future
revisions, supplements and/or reissues.
2.
When reference is made in this Tariff to tariffs, items, notes, rules, charges, etc.,
such references are continuous and include supplements to and successive issues
thereof and reissues of such tariffs, items, notes, rules, charges, etc.
D.
Governing Publications
Title or Kind of Tariff
Hazardous Materials
E.
Issuing Agent or Carrier
Tariff No.
U.S. Dept. of Transportation Title 49 CFR
Bills of Lading
The terms and conditions specified in the ABF Logistics Bill of Lading (ABFLBOL)
shall govern shipments or services arranged by ABF Logistics. Any bills of lading,
manifest, pickup order and/or other document provided by a shipper, customer,
broker, forwarder, carrier, intermediary or any other person/entity not issued by
ABF Logistics shall be subordinate to the ABFLBOL and shall only act as receipts
of the goods.
F.
Services Standards –
1.
ABF Logistics and carriers are not bound to transport a shipment by a particular
schedule or in time for a particular market, but are responsible to transport with
reasonable dispatch. In case of necessity, a carrier may forward a shipment via
another carrier.
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2.
Shipments requiring protective temperature control may be accepted subject to the
availability of suitable equipment and/or location when you have requested such
service when requesting a quote and such service is noted on the applicable
Pricing Schedule and applicable bill of lading or Rate Quotation which are clearly
and legibly marked in upper-case letters in accordance with the following:
a. Where shipments are subject to damage from freezing, marking must clearly
instruct carrier to protect from freezing.
b. Where shipments requiring maintenance at or below a specific temperature, or
movement within a range of temperatures, marking must indicate the
temperature or temperature range required.
3.
Commodities requiring special or additional care of attention in handling or
showing must be so marked and packaged as it ensure safe services can be
provided with ordinary care. These commodities include, but are not limited to:
fragile commodities; commodities that must remain upright; top-heavy
commodities; commodities that require more than normal protection from moisture;
commodities that must be protected from heat; commodities that must be protected
from freezing; commodities that must be handled with a hand truck; commodities
that must not be handled with a hand truck; commodities that must be handled with
a forklift; commodities that must not be handled with a forklift; commodities that
may be stacked to not exceed a certain height; commodities that must not be
stacked; commodities that must be kept within a certain temperature range;
commodities that have a center of balance that is not center of the commodity; and
magnetically sensitive commodities. If such commodities are not properly marked,
ABF Logistics, the carrier(s), warehouseman or other service provider shall not be
liable for loss and/or damage occurring to such commodities
II. General Services Rules, Terms and Conditions
A.
Application
1.
The terms and conditions herein are applicable to all services under this Tariff.
These provisions supersede any agreements made prior to services, and by
accepting services, you agree to be bound by the terms and conditions herein.
2.
This Tariff applies in connection with shipments set forth in a Pricing Schedule or
Rate Quotation between points in the contiguous United States, between points in
the United States and Alaska or Hawaii, points in Mexico, and between points in
U.S. and Mexico or Canada, or between points in Mexico and Canada.
3.
This Tariff applies to warehousing and cross-docking services within the United
States and as otherwise provided in the applicable Pricing Schedule or Rate
Quotation.
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4.
ABF Logistics reserves the right to reject a service request when the requested
service cannot be reasonably performed or is unavailable for the specified
origin/destination or location.
5.
All notices and other communications required to be given by you to ABF Logistics
shall be at the address indicated on page 1, and to you at the address set forth in
the applicable Pricing Schedule or Rate Quotation. All such notices shall be in
writing and shall be delivered in person, overnight delivery services, or sent by
United States certified mail, return receipt requested, and postage prepaid. Any
such notice or other communication is effective upon receipt by the addressee.
Such addresses may be changed by you or ABF Logistics upon written notice to
the other as provided in this section.
B.
Charges, Conditions and Payment Terms
1.
You shall be responsible for paying ABF Logistics for services arranged. You
agree to pay ABF Logistics the rates and charges set forth or referenced in the
applicable Pricing Schedule or Rate Quotation, as applicable, and this Tariff as full
and complete compensation for services to be arranged and/or managed by ABF
Logistics under this Tariff. You shall be responsible for payment of any and all
services not set forth in the applicable Pricing Schedule or Rate Quotation which
you request ABF Logistics to have arranged or managed for you. ABF Logistics
shall send invoices to you and you shall pay ABF Logistics within fifteen (15) days
from the invoice date. Rates and charges that are not paid within fifteen days from
the invoice date (or other credit period, if applicable) and for which ABF Logistics
acquires the use of an outside collection agency and/or attorney to effect
collections will be subject to a collections handling fee of thirty percent (30%) of the
unpaid amount.
2.
This Tariff governs and controls all services we provide, and is part of each
agreement that we enter into with you. Unless otherwise noted, a rate does not
include applicable fuel surcharges and charges for special services performed.
Specific special service and accessorial charges are contained or referenced in the
Pricing Schedule, Rate Quotation, this Tariff and/or Appendix 1 hereto. Fuel
surcharges are contained in Appendix 2 hereto. All charges on services will be
based on actual goods tendered to ABF Logistics. AT ABF LOGISTICS' SOLE
OPTION, IT MAY REFUSE TO APPLY THE ISSUED PRICING SCHEDULE OR
RATE QUOTATION TO SERVICES WHICH DO NOT MATCH THE EXACT
PRICING SCHEDULE OR RATE QUOTATION SPECIFICS OR WHICH DO NOT
REFERENCE THE PRICING SCHEDULE NUMBER ON THE INITIAL BILL OF
LADING OR THE RATE QUOTATION NUMBER.
3.
When ABF Logistics services are executed, the rates, charges, rules and terms of
this Tariff shall take precedence over any otherwise applicable rates, charges,
rules or terms, whether listed in any other contracts, tariffs, schedules or in any
other form whatsoever, including the terms and conditions contained in any
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services documents. Services will not be eligible for any other form of rate
reduction, including discounts, allowances and incentive programs.
4.
Except as otherwise specifically agreed to in writing mutually signed by you and
us, in addition to line haul or base transportation rates, certain accessorial
charges and special service fees set forth or incorporated herein shall govern
services provided to you. If a service provider imposes its own accessorial
charges and special service fees on ABF Logistics as necessary in order to meet
your requirements, you will be liable for such charges at 110% of any such
charges imposed on ABF Logistics by the service provider for services performed
by transporting carrier.
5.
Payment terms for transportation services may be outbound prepaid, inbound
collect or third-party. Collect on delivery (COD) shipments will be accepted only
under limited circumstances at ABF Logistics’sole discretion and shall be subject
to the following provisions and charges:
a. General terms:
i. COD service is available for packages shipped in the U.S. only.
ii. ABF Logistics will accept COD shipments for collection by the carrier
for amounts up to a maximum of $50,000.00 per shipment.
iii. The consignor must clearly provide and specify the following:
1. The letters “
COD”will be placed immediately before the name
of the consignee and across the face of the bill of lading.
2. The bill of lading containing all remittance information,
including:
a. COD amount;
b. Remit-to name, street, city, state and zip code;
c. Identity of the party responsible for the COD charges in
subsection (b) below;
d. Acceptable form of payment from subsection (b)(iii)
below.
iv. Each package must be plainly marked, labeled, or tagged showing
COD.
v. If the party requesting COD service desires to forward invoice or
collection papers, they must be securely attached to the shipping
order copy of the bill of lading, and the shipping order must show the
following information:
"Attached invoice (invoices) to accompany shipment to destination."
vi. COD shipments will not be accepted if:
1. Instructions require payment from a party other than
consignee.
2. COD is subject to inspection, trial by consignee, or if carrier
requested to make partial delivery.
3. COD shipment is of explosives.
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vii. Intoxicating beverages may be handled COD only under the
provisions provided by state laws of the state in which the point of
destination is located.
b. Fees and payment:
i. The fee for collecting and remitting each COD bill will be 6.0% of the
COD amount but not less than $150.00. For each order bill of lading
the fee will be $150.00.
ii. The fee for collecting and remitting the amount on bills for COD
shipments will be collected from the party requesting COD service.
iii. The carrier will not accept currency of any kind. Only the following
forms of payment will be accepted:
1. bank cashier's check;
2. bank certified check;
3. money order; or
4. company check or personal check of the consignee when so
authorized in writing by the consignor.
iv. All checks and money orders shall be made payable to the consignor.
v. The carrier will attempt to collect the amount shown on the COD tag
or package label, and then send the collected payment to the
consignor (or payee if other than consignor) within 15 days after
delivery. If the carrier cannot collect the payment after three
attempts, the package will be returned.
c. Liability:
i. Payment for COD service does not provide protection against
package loss or damage.
ii. All risk related to the collection of the payment is to be borne by
the party requesting COD service, and neither ABF Logistics nor
carrier will be liable for COD amount not collectible as a result of
stop payment, insufficient funds, invalid signature, lost or stolen
instruments, uncollected funds, forgery, fraudulent or
counterfeit instruments, post-dated checks or any other reason
beyond the control of ABF Logistics or carrier, even when either
such party is specified as the payee.
iii. The carrier’
s responsibility is limited to the exercise of due care
and diligence in forwarding such checks and money orders to
consignor, payee or party designated by consignor.
ABF
Logistics’sole responsibility is to transmit instructions to the
carrier for the collection of COD amounts provided for herein.
Neither ABF Logistics nor the carrier will be responsible for
guaranteeing or verifying that a check, money order or other
instrument is legitimate.
iv. Notwithstanding any provision herein, neither ABF Logistics nor
carrier will be liable in any respect whatsoever if the
consignor/consignee does not adhere to the requirements
outlined in this tariff item, including bill of lading requirements,
or if shipment is refused by the consignee.
v. In the event the carrier fails to follow through and collect the
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COD amount to be provided by subsection (a)(iii) above, the
carrier’
s liability for such amount will end if a lawsuit is not
brought within sixty (60) days from the date of shipment. In the
event ABF Logistics fails to transmit instructions to carrier for
the collection of COD amounts provided for herein, ABF
Logistics’liability for such amount will end if a lawsuit is not
brought within sixty (60) days from the date of shipment.
vi. Performance of COD service does not make the carrier or ABF
Logistics an agent of the shipper for any purpose whatsoever,
including, but not limited to, completion of the sale of goods by
the shipper to the consignee. Carrier and ABF Logistics are
independent contractors providing COD service for a fee.
d. Changes. A fee of $125.00 per occurrence will be assessed for:
i. Making a change in the party responsible for paying the COD fee.
ii. Reducing or canceling the COD amount. Such change will be in
addition to the COD collection fee, if any, and must be guaranteed in
writing by the party requesting COD service.
iii. Changing the form of payment of the COD amount to accept
consignee's previously unauthorized personal check after the
shipment has been tendered for delivery and refused by the
consignee. ABF Logistics will only make this change upon written
authorization from the party requesting COD service. The shipment
will also be assessed the applicable redelivery charge as provided in
ABF Logistics’applicable pricing in addition to all other applicable
charges.
iv. Adding COD status to a non-COD shipment or increasing the amount
of COD for an existing COD shipment. ABF Logistics will attempt to
perform this service when conditions allow. However, based on its
sole judgment, ABF Logistics may decline to perform this change.
ABF Logistics accepts no liability for its failure to make such change.
The charge for performing this service will be in addition to all other
applicable charges including the COD collection fee, if any, and must
be guaranteed in writing by the party requesting COD service.
6.
Unless otherwise provided within the applicable Pricing Schedule, for
transportation services the price is based on shipper load (including you provide
any necessary blocking and bracing) and consignee unload. Any expense to
carrier for loading (including any necessary blocking and bracing) or unloading
service will be assessed against the payor of the freight charges, in addition to all
other charges, when the quoted price is subject to: (1) shipper load and count
and the carrier incurs loading expense; and/or (2) consignee unload and the
carrier incurs unloading expense.
7.
In the event that calculations are required which produce fractions, the number will
be rounded to the nearest whole cent. If less than .5, it shall be reduced to the next
lower cent. If .5 or more, it shall be increased to the next higher cent.
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8.
You shall not offset any amounts owed to ABF Logistics, and hereby waive any
offset rights you may have as to services provided under this Tariff.
9.
A Pricing Schedule or Rate Quotation shall be effective and expire as indicated in
such document.
10.
If electronic data interchanged (hereinafter “
EDI”
) services to communicate
between the you and ABF Logistics are requested or required, it is agreed to use
standard EDI transaction sets as published in the ASC X12 EDI Standard Book.
Unless otherwise agreed in writing signed by you and ABF Logistics, each party
will pay those charges billed it by its own value added network (hereinafter “
VAN”
).
Such charges will include charges for both sending and receiving, and
communications or miscellaneous or service costs for communication by each
party with its VAN.
11.
The consignor or consignee shall be liable for the service charges accruing on
services, as billed or corrected, except that collect shipments may move without
recourse to the consignor when the consignor so stipulates by signature and
endorsement in the space provided on the face of the bill of lading. Nevertheless,
the consignor shall remain liable for service charges where there has been an
erroneous determination of the service charges assessed, based upon incomplete
or incorrect information provided by the consignor.
12.
When carrier, warehouseman or other service provider believes it is necessary to
verify the stated weight of a shipment as tendered, the carrier, warehouseman or
other service provider shall weigh the shipment or cause the shipment to be
weighed. If the stated weight is found to be inaccurate, the carrier, warehouseman
or other service provider shall correct the weight accordingly. Service charges will
be assessed on the actual weight of shipments.
13.
The estimated service charges in Pricing Schedules and Rate Quotations are
based upon assumptions you provide to us. If such assumptions are incorrect, your
estimated service charges will be incorrect. The actual service charges you will be
obligated to pay us will be based on the actual commodities, location points and
services (assumptions) applicable and required which we arrange or manage for
you.
14.
General Lien and Right to Sell Property.
a. You hereby grant, and ABF Logistics shall have, a general and continuing
lien on any and all of your property and/or shipments coming into ABF
Logistics’actual or constructive possession or control, or for which services
ABF Logistics has arranged or managed for you, for monies owed to ABF
Logistics with regard to the shipment on which the lien is claimed, a prior
shipment(s), prior or current service(s), and/or all of the foregoing.
b. ABF Logistics shall provide written notice to you of its intent to exercise
14
such lien, the exact amount of monies due and owing, as well as any
ongoing storage or other charges; you shall notify all parties having an
interest in your shipment(s) of ABF Logistics’rights and, where applicable,
the exercise of such lien.
c. Within thirty days of receiving notice of lien, you shall post cash or letter of
credit at sight, or, if the amount due is in dispute, an acceptable bond equal
to 110% of the value of the total amount due, in favor of ABF Logistics and
sufficient documentation provided to ABF Logistics evidencing such, which
shall guarantee payment of the monies owed, plus all storage charges
accrued or to be accrued. If you fail to strictly comply with the foregoing,
ABF Logistics’shall have the right to sell such property or shipment(s) at
public or private sale or auction and any net proceeds remaining thereafter
shall be refunded to you. ABF Logistics retains all rights to recover the
balance owed from you if the proceeds of the sale are insufficient to cover
the amount owed.
d. In furtherance of the foregoing, you also grant ABF Logistics a security
interest in such property or shipment(s) until you have fully satisfied all
liabilities, whenever occurring, owed to ABF Logistics. ABF Logistics is
authorized to file financing statements under the Uniform Commercial Code
covering any such property or shipment(s) without your further action or
signature, and ABF Logistics shall have all the rights and remedies of a
secured party under the Uniform Commercial Code.
C.
Carrier Commodity Liability Limitations for Loss/Damage (excluding CrossDocking and Warehousing Services)
1.
Except as otherwise provided herein, ABF Logistics’liability for commodity loss
and damage caused by a carrier performing transportation services for you begins
upon the hired carrier signing the receipt or bill of lading for property it receives for
transportation. All commodity loss and/or damaged claims will be investigated and
disposed of pursuant to the provisions set forth in 49 C.F.R. Part 370.
2.
ABF Logistics and the carrier’
s liability for commodity loss and/or damages caused
by them (excluding cross-docking and warehousing services) performing services
for you under this Tariff will be governed by the terms of the applicable ABF
Logistics Pricing Schedule and this Tariff. In cases where liability is not established
by the terms of the applicable ABF Logistics Pricing Schedule, ABF Logistics and
the carrier’
s commodity liability will not exceed the lesser of:
a. The actual value of the commodity;
b. $5.00 per pound per lost or damaged package;
c. $0.10 per pound per lost or damaged package for any commodities that are not
new;
d. $2.00 Canadian per pound per lost or damaged package for any shipment
originating in Canada;
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e. No coverage for shipments from, to or in any point in Mexico; or
f. $100,000.00 per trailer.
D.
Commodity Claims Process for a Carrier (excluding Cross-Docking and
Warehousing Services)
1.
Claims for loss or damage to commodities which are caused by a carrier, but
excluding cross-docking and warehouse services, must be filed in writing and as
required by the terms of the ABF Logistics Pricing Schedule, the ABF Logistics Bill
of Lading, and this Tariff. In its discretion, ABF Logistics may assist the claimant in
filing claims with the transporting carrier. However, it is the claimant’
s responsibility
to see that a claim is filed directly with ABF Logistics or with the transporting carrier
within nine (9) months after delivery of the property; provided that claims for failure
to make delivery must be filed within nine (9) months after a reasonable time for
delivery has elapsed.
2.
When damage is discovered after delivery, it should be reported to ABF Logistics
immediately and a concealed damage inspection requested. ABF Logistics will
either waive the inspection and advise you to submit a claim or we will send an
inspector to examine the freight. You should hold the commodity, the shipping
container and container packaging content until disposition is given by ABF
Logistics. If report of loss or damage is made after the date of delivery by the
servicing carrier, the claimant shall be required to present reasonable evidence
that the loss or damage was not incurred after delivery of shipment by the carrier.
When claims are not filed within the prescribed time limits set forth in Sections
II(D)(1) through (3), such claims shall be barred and not paid. Properly filed claims
for commodity loss or damage filed against ABF Logistics will be promptly and
sufficiently acknowledged and investigated.
3.
Lawsuits for commodity loss or damage shall be instituted against ABF Logistics
and/or the carrier no later than two (2) years from the day when written notice is
given by ABF Logistics or the carrier to the commodity claimant that all or any part
of the commodity claim stated in the notice has been disallowed. Where claims are
not filed or lawsuits are not instituted thereon in accordance with the foregoing
provisions, neither ABF Logistics nor the carrier shall be liable, and such claims
shall not be paid.
4.
ABF Logistics and the carrier are relieved of any liability for damage to the
shipment resulting from the co-loading of the commodities on the same trailer with
other freight that is either incompatible with or prohibited by applicable federal,
state or local laws and regulations from being co-loaded on the same trailer with
the other commodity(ies).
5.
You have a duty to cooperate fully with any investigation ABF Logistics makes
during the claim settlement process. At a minimum, “
cooperate”includes making
freight available for inspection, granting access to transportation and storage
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transaction records, and leaving any containers and its packaging content with
visible exterior damage packed until they are inspected.
E.
Warehouse Liability Limitations for Property Loss/Damage (including CrossDocking Services but excluding Carrier Services)
1.
You understand that property loss and/or damage liability limitations apply to
property when in storage, cross-docking or other related services are provided by
the warehouseman or arranged by ABF Logistics.
2.
ABF Logistics, the warehouseman or other service providers are liable for
damages for loss and/or damage to the property caused by the warehouseman’
s
or the services provider’
s failure to exercise such care in regard to loss and/or
damaged property as a reasonably careful warehouseman or service provider
would exercise under like circumstances, but unless otherwise agreed, ABF
Logistics, the warehouseman and service provider are not liable for loss and/or
damage to property which could not have been avoided by the exercise of such
care. ABF Logistics, the warehouseman and service provider’
s property liability for
loss and/or damage to property in no instance shall exceed the lesser of (1) fifty
(50) times the base storage rate on a package, cube, or per cwt. basis or (2) $0.25
per pound per loss or damaged package, unless excess property liability coverage
is requested by you, documented and approved at the time of the provided quote
(Pricing Schedule or Rate Quotation). When excess property liability coverage is
requested, increased warehousing or other rates may be charged on such
increased liability coverage at the current costs and limits which will be indicated
on the applicable Pricing Schedule or Rate Quotation. ABF Logistics, the
warehouseman and service provider are not liable for property loss and/or damage
occurring during storage or any related storage services.
3.
Where loss and/or damage to property occurs to stored or handled property, for
which the warehouseman or other service provider is not liable, you shall be solely
responsible for any and all costs of removing and disposing of such property and
any and all cost of any environmental clean-up and site remediation resulting from
the loss and/or damage to the property, including, but not limited to, any loss or
injury to property owned by others.
4.
Property is not insured by ABF Logistics, the warehouseman or other service
provider against loss and/or damage however caused.
5.
Warehouseman shall be liable for loss of property due to inventory shortage or
unexplained or mysterious disappearance of property only if you establish such
loss occurred because of the warehouseman’
s failure to exercise the care required
of warehouseman as provided herein. Any presumption of conversion imposed by
law shall not apply to such loss and a claim by you of conversion must be
established by affirmative evidence that the warehouseman converted the property
to the warehouseman’
s own use.
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6.
If the warehouseman negligently misships property, the warehouseman shall pay
the reasonable transportation charges incurred to return the misshipped property
to the warehouse facility. If the consignee fails to return the property, the
warehouseman’
s maximum liability shall be for the lost or damaged property as
specified herein, and the warehouseman and ABF Logistics shall have no liability
for damages due to the consignee’
s acceptance or use of the property whether
such property is yours or another.
7.
Neither ABF Logistics, the warehouseman nor a service provider shall be liable for
any loss of profit or special, multiple, punitive, indirect, incidental or consequential
damages of any kind, whether or not foreseeable or known.
F.
Notice of Property Claim and Filing of Claim and/or Lawsuit (for
Warehousing or storage related services)
1.
Property claims for loss and/or damage by any property claimant where such loss
and/or damage occurred during warehousing, storage related services or crossdocking must be presented in writing to ABF Logistics, the warehouseman or other
service provider within a reasonable time, and in no event any later than the earlier
of: (i) sixty (60) days after delivery of the property by the warehouseman or service
provider; or (ii) sixty (60) days after you are notified by ABF Logistics, the
warehouseman, or other service provider that loss and/or damage to part or all of
the property has occurred.
2.
Each claim must contain information necessary to identify the property affected,
the basis for liability and the amount of the alleged loss and/or damage, as well as
all appropriate supporting documentation which must include: a summary of the
claims for both damaged or shortages of property, a report of individual carton ID’
s
and their appropriate claims designation, including claim value, and individual
claim forms for each claim that is supported by the report also provided.
3.
No lawsuit or other action may be maintained by a property claimant against ABF
Logistics, the warehouseman or other service provider for loss or damage to the
property unless timely written claim has been given as provided in Section II(F)(1)
and unless such lawsuit or other action is commenced by no later than the earlier
of: (i) nine (9) months after date of delivery by warehouse or service provider; or (ii)
nine (9) months after you are notified that property loss and/or damage to part or
all of the property has occurred.
4.
When property has not been delivered by the warehouseman or service provider,
warehouseman or service provider’
s notice may be given of known property loss or
damage by mailing of a letter via certified mail or overnight delivery to you. Time
limitations for presentation of claim in writing and maintaining of action after notice
begin on the date of mailing of such notice by ABF Logistics, the warehouseman or
service provider.
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G.
Optional Excess Liability Coverage
1.
ABF Logistics’offered pricing is based upon certain commodity or property liability
limitations as set forth herein or as indicated on the applicable Pricing Schedule or
Rate Quotation. At your option, you can request different commodity or property
liability limitations up to the actual value of the commodities or property at different
offered pricing. Optional excess commodity or property liability coverage must be
requested at the time of the quote, and included in writing on the bill of lading
issued by ABF Logistics. It is only available when it is requested, documented and
approved at the time when ABF Logistics’
issues you the Pricing Schedule or Rate
Quotation. ABF Logistics reserves the right to refuse services when the request for
excess commodity or property liability is deemed by ABF Logistics to be an
unacceptable risk or for any other reason.
2.
ABF Logistics will increase the line haul charge for excess cargo liability coverage.
Charges are to be paid by the party responsible for payment of service charges.
Excess liability coverage is not and will not be considered as insurance. Excess
liability coverage will only apply to services which meet the specific provisions
outlined herein, including, meeting industry minimum packaging requirements
unless other standards are specifically required herein.
3.
When optional excess cargo liability is requested for other than new commodities,
the maximum liability assumed by ABF Logistics, a carrier, warehouseman and
service provider will not exceed $5.00 per pound per lost or damaged package. In
order for other than new commodities or property to be eligible for excess liability
coverage, the shipment must be packaged so as to meet industry minimum
packaging requirements (unless other standards are specified herein) for a similar
commodity or commodities. Failure of the shipper to declare that a commodity is
“
other than new”shall not alter the application of this provision.
H.
Commodity Liability Exclusions
1.
ABF Logistics, the carrier, warehousemen and/or other service provider will not be
liable and will not pay for commodity loss and/or damage caused directly or
indirectly by any of the following events. Any such commodity loss or damage is
excluded regardless of any cause or event that contributes concurrently or in any
sequence to such loss and/or damage:
a. Any weapon employing atomic fission or fusion;
b. Nuclear reaction or radiation, or radioactive contamination from any other
cause;
c. War, including undeclared or civil war;
d. Warlike action by a military force, including action in hindering or defending
against an actual or expected attack, by any government, sovereign or other
19
authority using military personnel or other agents;
e. Insurrection, rebellion, revolution, usurped power or action taken by
governmental authority in hindering or defending against any of these;
f. Delay, loss of use, loss of market, loss of income or any other consequential,
incidental or indirect damages;
g. Dishonest or criminal acts by you, your partners, directors, trustees, officers,
members, employees or independent contractors; or
h. Any costs, fines or penalties you incur from any contractual obligation to a thirdparty or you incur for your violation of any law or regulation that applies to your
delay in payment, denial or settlement of any claim made against you by others
for any loss or damage.
I.
Prohibited Commodities
1.
The following commodities will not be accepted for any services. If ABF Logistics
does accept and arrange such property, ABF Logistics, the carrier,
warehouseman, and/or other service provider will not be liable and responsible for
any loss and/or damage caused to the following commodities:
a. Live animals, insects, vermin, rodents, birds, poultry, fish or marine life;
b. Animal hides, skins or bones, inedible;
c. Corpses;
d. Accounts, bills, deeds, letters of credit, passports, lottery or other tickets,
stamps, revenue stamps, postage stamps, money, currency (including coins),
securities, checks, drafts, notes, evidence of debt, commercial paper, post,
blueprints, mechanical drawings, manuscripts, other valuable paper or records,
bullion or bullion coins, coins, precious stones or metals, jewelry, abstracts,
paintings, etchings, drawings, rare books, tapestries, sculptures, statuary and
other bona fide works of art, rarity, antiquity, historic value or artistic merit.
2.
When prohibited commodities are included in services we provide to you, ABF
Logistics reserves the right to collect from you the costs or monetary amounts
caused by or arising out of the services provided for any prohibited commodities
for:
a. Cleanup and repairs to trailers and other equipment;
b. Property claims, including, but not limited to, any cargo loss and/or damage;
c. Personal injuries, including death;
20
d. Damages and/or loss of use of equipment; and
e. Attorneys’
fees and litigation costs.
J.
General Commodity Provisions
1.
The term "package" means any primary shipping package authorized by the
provisions of individual tariffs or classification items. When a number of packages
have been unitized, strapped or otherwise fastened together, or contained on
pallets, platforms or skids, or have been overpacked in an additional complying
package, ABF Logistics, the carrier, warehouseman and other service provider’
s
liability will be determined by separately multiplying the weight of each individual
package lost or damaged "times" the applicable per pound per package liability as
set forth herein and not on the basis of the weight of the total number of packages
unitized, strapped or otherwise fastened together or contained on pallets, platforms
or skids, or overpacked in an additional complying package.
2.
ABF Logistics, the carrier, warehouseman and/or other service providers shall not
be liable for any commodity loss or damage caused by an act of God or a public
enemy, the authority of law, authorities, the act or default of the shipper, or when
property is stopped and held in transit upon request of the shipper, owner or party
entitled to make such request, from faulty or impassible highway or by lack of
capacity of a highway bridge or ferry, or from a defect or vice in the property, or
from terrorism, riots or strikes, or unusually severe weather which has a material
effect on ABF Logistics’
ability to arrange or have services performed.
3.
While ABF Logistics’goal is 100% on-time service, due to the many and varied
factors that affect the shipment, storage of property, warehousing, cross-docking
and other provided services, 100% on-time service is not guaranteed under this
Tariff. ABF Logistics, carriers, warehouseman and other service providers shall not
be liable for any damages caused by missed delivery dates and/or times.
4.
ABF Logistics, carriers, warehouseman, and other service providers shall not be
liable, and hereby disclaim responsibility, for any indirect, incidental, special,
punitive, multiplied or consequential damages, or other indirect costs, fees,
charges or from delays of any kind arising from any freight claims filed hereunder
or any other acts or omissions of ABF Logistics, a carrier, warehouseman and/or
any other service provider whether or not foreseeable or disclosed.
5.
Except, as provided herein, ABF Logistics shall not be responsible for loss, theft,
damage or destruction of any and all your property from services arranged and/or
managed whether resulting from being warehoused, transported and/or from any
other services arranged by ABF Logistics to you under this Tariff.
6.
If all or any part of the property is carried by water over any part of such route,
such water carriage shall be performed subject to the terms, provisions and
21
limitation of liability specified by the “
Carriage of Goods By Sea Act”and any other
pertinent laws applicable to water carriage.
7.
If you request services for explosives or dangerous commodities, without previous
full written disclosure to ABF Logistics, the carrier, a warehouseman or other
service provider, as applicable, of their nature, you shall be liable for and
indemnify, defend and hold harmless ABF Logistics, the carrier, warehouseman
and other services provider against all liabilities and damages, including attorneys’
fees and litigation costs caused by such commodities. Such commodities may be
warehoused or destroyed at your risk and expense without compensation to you.
8.
If the consignee refuses services tendered or if the service provider is unable to
complete services, because of fault or mistake of the consignor or consignee, the
service provider’
s liability shall then become that of a warehouseman. ABF
Logistics shall promptly attempt to:
a. 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 the bill of lading. Storage charges as set forth in
Appendix 1 shall start no sooner than the next business day following the
attempted notification. Storage may be, at our option, in any location that
provides reasonable protection against loss and/or damage. We may place the
shipment in public storage at your expense and without liability to us.
b. If we do not receive disposition instructions within forty eight (48) hours of the
time we attempted first notification, we will attempt to issue a second and final
confirmed notification. Such notice shall advise that if we do not receive
disposition instructions within ten (10) days of that notification, we may offer the
shipment for sale at a public auction and we have the right to offer commodities
for sale. The amount of sale will be applied to your invoice for transportation,
storage and other service charges. You will be responsible for the balance of
charges not covered by the sale of the commodities. If there is a balance
remaining after all charges and expenses are paid, such balance will be paid to
you, upon claim and proof of ownership.
c. Where we have attempted to follow the procedure set forth herein and the
procedure provided herein is not possible, nothing herein shall be construed to
abridge the right of us, at our option, to sell the commodities under such
circumstances and in such manner as may be authorized by law. When
perishable commodities cannot be delivered and disposition is not given within
a reasonable time, we may dispose of commodities to the best advantage.
d. Where we are directed by consignee or consignor to unload or deliver
commodities 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 us.
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K.
Subrogation and Release
1.
Your right to receive payment of an amount from ABF Logistics in settlement of a
cargo or commodity loss and/or damage claim shall include the additional
obligations to:
a. Assign and subrogate to ABF Logistics at the time of such payment all rights
and claims that you have against any other individual(s) or entity(ies) with
respect to the paid claim;
b. Convey all rights, title and interest in damaged commodities to ABF Logistics
and to make the same available to ABF Logistics for salvage/recovery;
c. Render all reasonable assistance in ABF Logistics’pursuit of recovery from a
third party(ies);
d. You authorize us in effecting such recovery;
e. You authorize us to file claims and/or lawsuits against any third party in your
name(s), and hereby appoint ABF Logistics as your agent and/or attorney-infact, with irrevocable power to collect any and all such claim(s) and to begin,
prosecute, settle or withdraw, either in your name and/or our name, but at our
expense, any and all legal or other proceedings which we may deem
necessary to enforce such claim(s), including proceedings before any tribal or
international tribunal, and to execute in your name any documents which may
be necessary to carry into effect the purpose of these subrogation rights
granted by you to us;
f. You agree to execute any documents which may be necessary to enable us to
proceed in accordance herewith, including any pleadings and releases that we
may request you to execute;
g. You agree that any monies collected from any third party through these
subrogation rights are solely our property; and
h. To fully and finally release ABF Logistics, in writing if requested by ABF
Logistics, from any and all liability regarding the claim for which ABF Logistics
makes payment to you in settlement of your claim and further in accordance with
confidentiality provisions contained in such written release.
L.
Services Associated Costs
1.
ABF Logistics reserves the right to charge and collect from you the following costs
and monetary amounts which occur while performing services that are caused by
your commodities:
a. Cleaning and repairs to trailers, other equipment and/or warehouses;
23
b. Property claims, including other commodity loss and/or damage;
c. Personal injuries, including death;
d. Loss of use of trailers, equipment and/or warehouse; and
e. Attorneys’
fees and litigation costs.
M.
Warehousing Services Provisions
As to warehousing services, if any provision in Section III conflicts with any other
sections in this Tariff, the provisions in Section III shall control and govern except
for Sections II(E)&(F).
III.
A.
Warehousing
Acceptance –
When you tender property through ABF Logistics for storage or other services to a
warehouse such act shall constitute your acceptance of this Tariff. In the event that
property tendered for storage or other services does not conform to the description
contained in the applicable Pricing Schedule or Rate Quotation, the warehouse
may refuse to accept such property. If the warehouse accepts such property, you
agree to rates and charges as may be assigned and invoiced by warehouse and to
all terms of this Tariff.
B.
Shipping –
You agree not to transport property to the warehouse and indicate the warehouse
as the consignee. If you violate such provision and property is shipped to
warehouse as the named consignee, you agree to notify the carrier in writing prior
to such shipment, with a copy of such notice to the warehouse, that the warehouse
named as the consignee is a warehouse and has no beneficial title or interest in
such property. You further agree that if you fail to notify the carrier as required by
the preceding sentence, the warehouse shall have the right to refuse such property
and neither the warehouse nor ABF Logistics shall be liable or responsible for any
liabilities, losses, damages or injuries of any nature to, or related to, such property
refusal. Customer further agrees to indemnify, defend and hold harmless the
warehouseman and ABF Logistics from any and all claims for unpaid
transportation charges, including, but not limited to, linehaul, undercharges,
demurrage, detention or charges of any nature, in connection with property so
shipped to the warehouse.
24
C.
Tender for Storage –
You understand all property for storage shall be delivered at the warehouse
properly marked and packaged for storage and handling. You shall furnish at or
prior to such delivery, a manifest showing marks, brands or sizes to be kept and
accounted for separately, and the class of storage and other services desired.
D.
Right to Store Property/Lawfully in Possession –
You represent and warrant that you are lawfully possessed of the property and
have the right and authority to have property transported and/or stored with
warehouseman. You agree to indemnify, defend and hold harmless the
warehouseman and ABF Logistics from all liabilities, damages, losses, costs, and
expenses, including reasonable attorneys’fees and litigation costs, that the
warehouseman or ABF Logistics pays or incurs as a result of any dispute or
litigation, whether instituted by the warehouse, ABF Logistics or another,
respecting customer’
s right, title or interest in property. Such amounts shall be
charges in relation to the property and subject to warehouse liens.
E.
Storage Period and Charges –
All charges for storage are set forth in applicable Pricing Schedule and appendices
hereto. Storage charges start on the date that the warehouse accepts care,
custody and control of the property, regardless of unloading date or date of issue
of the warehouse receipt.
F.
Transfer, Termination or Storage Removal of Property –
1.
You understand that instructions to transfer property on the books of the
warehouse are not effective until delivered to and accepted by the warehouse, and
all charges up to the time transfer is made are chargeable to you. If a transfer
involves re-handling the property, such may be subject to a charge if set forth in
the applicable Pricing Schedule and in appendices hereto. When property in
storage is transferred from you to another through issuance of a new warehouse
receipt, a new storage date is established on the date of transfer.
2.
You understand the warehouse reserves the right to move, at its expense, after
fourteen (14) days prior notice is sent by certified or registered mail and return
receipt to you or to the last known holder of the negotiable warehouse receipt, any
property in storage from the warehouse in which it may be stored to any other
warehouse complex facility, unless you or holder takes delivery of their property in
lieu of transfer. You further understand that the warehouse will store the property
at, and may without notice move the property within and between, any one or more
of the warehouse buildings which comprise the warehouse complex identified in
the applicable Rate Quotation.
25
3.
The warehouse may, upon not less than thirty (30) days prior written notice to you
and any other person known by the warehouseman to claim an interest in the
property, require the removal of any property. Such notice shall be given to the last
known place of business or abode of the person/entity to be notified. If property is
not removed before the end of the notice period, the warehouse may sell them in
accordance with applicable law.
4.
You understand if the warehouseman in good faith believes that the property is
about to deteriorate or decline in value to less than the amount of the
warehouseman’
s lien before the end of the thirty (30) day notice period referred to
in Section III(F)(3), the warehouseman may specify in the notification any
reasonable shorter time for removal of the property and in case the property is not
removed, may sell them at public sale or as otherwise provided by law.
5.
You understand if as a result of a quality or condition of the property of which the
warehouseman had no notice at the time of deposit the property are a hazard to
other property or to the warehouse facility or to people, the warehouseman may
sell the property at public or private sale without advertisement on reasonable
notification to all persons known to claim an interest in the property. If the
warehouseman after a reasonable effort is unable to sell the property it may
dispose of property in any lawful manner and the warehouseman or ABF Logistics
shall incur no liability by reason of such disposition. Pending such disposition, sale
or return of the property, the warehouseman may remove the property from the
warehouse facility and neither the warehouseman nor ABF Logistics shall incur
liability by reason of such removal.
G.
Handling -
1.
The handling charge covers the ordinary labor involved in receiving property at the
warehouse door, placing property in storage, and returning property to warehouse
door. Handling charges are due and payable on receipt of property.
2.
Unless otherwise agreed in writing, labor for unloading and loading property will be
subject to a charge. Additional expenses incurred by the warehouseman in
receiving and handling damaged property, and additional expense in unloading or
loading into railcars, containers or other vehicles not at warehouse door will be
charged to you as set forth in the applicable Pricing Schedule and appendices
hereto.
3.
Labor and materials used in loading rail cars, containers or other vehicles are
chargeable to you.
4.
When property is ordered out in quantities less than in which received, the
warehouseman may make an additional charge for each order or each item of an
order.
26
5.
Neither the warehouseman nor ABF Logistics shall be liable for demurrage,
detention or any delays in unloading inbound rail cars, trailers, vehicles or other
containers, or any delays in obtaining and loading rail cars, trailers, vehicles or
other containers for outbound shipments.
H.
Delivery Requirements –
1.
No property shall be delivered or transferred except upon receipt by the
warehouseman of your complete written instructions. Written instructions shall
include, but are not limited to, facsimile, electronic data interchange (EDI), email or
similar communication, provided neither the warehouseman nor ABF Logistics
shall have any liability when relying on the information contained in the
communication as received. Property may be delivered upon instruction by
telephone in accordance with your prior written authorization, but neither the
warehouseman nor ABF Logistics shall be responsible for loss or error occasioned
thereby.
2.
When a negotiable receipt has been issued, no property covered by that receipt
shall be delivered or transferred on the books of the warehouseman, unless the
receipt, properly endorsed, is surrendered for cancellation, or for endorsement of
partial delivery thereon. If a negotiable receipt is lost or destroyed, delivery of
property may be made only upon order of a court of competent jurisdiction and the
posting of security approved by the court as provided by law.
3.
When property is ordered out a reasonable time shall be given to the
warehouseman to carry out instructions, and if the warehouseman is unable
because of acts of God, war, public enemies, seizure under legal process, strikes,
lockouts, terrorism, riots and civil commotions or any reason beyond the
warehouseman’
s control, or because of loss or damage of property for which
warehouseman is not liable, or because of any other excuse provided herein or by
law, the warehouseman and ABF Logistics shall not be liable for failure to carry out
such instructions and property remaining in storage will continue to be subject to
regular storage charges.
I.
Special Services –
1.
Warehouse labor required for services other than ordinary handling and storage
may be charged to you.
2.
Special services requested by you, including, but not limited to, compiling of
special stock statements, reporting marked weights, serial numbers or other data
from packages, physical check of property, and handling transit billing may be
subject to a charge.
3.
Dunnage, bracing, packing materials or other special supplies, may be provided to
you at a charge in addition to the warehouseman’
s or ABF Logistics’
cost.
27
4.
By prior arrangement, property may be received or delivered during other than
usual business hours, but such services may be subject to a charge.
5.
Communication expense including postage, overnight delivery, or telephone may
be charged to you if such concerns more than normal inventory reporting, or, if at
the request of you, communications are made by other than regular U.S. mail.
J.
Bonded Storage –
A charge in addition to regular rates will be made for merchandise held in bond.
Bonded storage charges are set forth in the applicable Pricing Schedule or Rate
Quotation and appendices hereto. Where a warehouseman receipt covers property
in U.S. Customs bond, neither the warehouseman nor ABF Logistics shall have
liability for property seized or removed by U.S. Customs.
K.
Minimum Charges –
1.
A minimum handling charge per lot and a minimum storage charge per lot per
month will be made as set forth in the applicable Pricing Schedule and appendices
hereto. When a warehouseman receipt covers more than one lot or when a lot is in
assortment, a minimum charge per mark, brand, or variety will be made.
2.
A minimum monthly charge to one account for storage and/or handling will be
made as set forth in the applicable Pricing Schedule and appendices hereto. This
charge will apply also to each account when you have several accounts, each
requiring separate records and billing.
L.
Liens The warehouseman and ABF Logistics have a general and specific liens against
the bailor on the property covered by a warehouse receipt or on the proceeds
thereof in its possession for all lawful charges for storage, preservation, services or
transportation of the property, including, but not limited to, for all money advanced,
interest, demurrage, terminal charges, insurance, labor, weighing, and/or other
charges and expenses in relation to the property, and for the balance on any other
accounts that may be due. Warehouse and ABF Logistics further claim a general
warehouse lien for all such charges, advances and expenses with respect to any
other property stored by Customer in any other facility owned, operated or utilized
by warehouse and/or ABF Logistics. In order to protect its lien, warehouse and
ABF Logistics reserve the right to require advance payment of all charges prior to
shipment of property.
M.
Hazardous Property -
1.
“
Hazardous Property”means (i) any substance, material or matter that is or may
become a threat to the health or safety of any individual or the public or the
environment; (ii) any materials or substances which are or are alleged to be
28
hazardous to human health or the environment based on nuisance, trespass,
negligence, strict liability or other tortious conduct; (iii) any hazardous substance”
listed in the U.S. Department of Transportation Table (49 C.F.R. 172.101), as the
same may be amended from time to time; (iv) asbestos, lead paint, polychlorinated
biphenyls, urea formaldehyde foam, radioactive materials and any materials the
removal of which is required or the maintenance of which is prohibited or
penalized; or (v) any other volatile, flammable, corrosive, explosive, biomedical,
infectious or toxic material.
2.
Customer shall not tender Hazardous Property to the warehouse without giving the
warehouse prior written notice of the nature of the Hazardous Property; provides
notice and complies with all federal, state and local laws and regulations applicable
to the storage and handling of the Hazardous Property; and all reasonable
information needed or helpful for the warehouse to comply with the reporting,
record keeping, employee training, safety, notification and similar requirements of
the laws and regulations applicable to the Hazardous Property. Customer will
promptly advise the warehouse of any changes in such information.
N.
Warehouse Payment of Invoices –
Customer shall pay all warehouse invoices in full, prior to complete inventory
depletion or shipment.
O.
Collect Shipment Guarantee –
When property is ordered shipped out by Customer on a freight collect basis and
the warehouse (or warehouse’
s agent) provides carriage and delivery services on
that shipment, the warehouse shall have recourse on the Customer to guarantee
payment and reimburse warehouse for the freight charge on any invoice that
becomes collectible.
P.
Accurate Information –
Customer will provide the warehouse and ABF Logistics with information
concerning the stored property which is accurate, complete and sufficient to allow
the warehouse to comply with all laws and regulations concerning the storage,
handling and transporting of the stored property. Customer will indemnify, defend
and hold harmless the warehouse and ABF Logistics from any and all liabilities,
damages, losses, costs, penalties and expenses, including reasonable attorneys’
fees and litigation costs which the warehouse and/or ABF Logistics pays or incurs
as a result of Customer’
s failing to fully discharge this obligation.
Q.
Negation Indirect Damages –
Neither the warehouse nor ABF Logistics shall be liable for any loss of profit or
special, multiple, punitive, indirect, incidental or consequential damages of any
kind, whether or not foreseeable or known.
29
R.
Additional Terms and Conditions –
1.
Customer understands when ABF Logistics arranges and/ manages warehousing
services on Customer’
s behalf, Customer may be subject to additional terms and
conditions contained in the warehouse’
s tariffs and/or other contractual documents.
2.
ABF Logistics shall not be liable for the acts and/or omissions of the warehouse or
Customer.
S.
Documents of Title –
Documents of title, including warehouseman receipts, may be issued either in
physical or electronic form at the option of the parties.
IV.
Cross-Docking Services
A.
Applicable Rate Quotation –
All Rate Quotation issued for cross-docking services shall be governed by the
below Rate Quotation and the terms and conditions contained therein. In the event
of a conflict between the terms and conditions contained in this Tariff and the
below Rate Quotation, the terms and conditions contained in the below Rate
Quotation shall control and govern such conflict.
Rate Quotation
Product
Customer
Representative
Warehouse Facility
Date
Quote ID#
Project Assumptions
Proposal is based on the following assumptions. If actual project falls outside the scope of these assumptions, proposal will need
to be reviewed for changes in pricing.
Palletized:
(Standard Dry Goods, No Temperature Controlled, No Hazardous Material) Round trip drayage, trans-loading, cross-docking,
labeling and shipping.
Assumes 40”
x48”standard pallets with a weight not exceeding 5,000 lbs per pallet.
Loose:
(Standard Dry Goods, No -Temperature Controlled, No Hazardous Material) Round trip drayage, trans-loading, cross-docking,
labeling and shipping.
Assumes loose pieces can be handled safely by one person both dimensionally and at a max weight of 50 lbs per piece.
Service Description
Rate
Unit
Storage
$1.50
(No Charge up to 72 Hours)
Per Pallet per Day
Handling (Palletized)
Cross-Dock Fee * Minimum $300.00 per container
Trans-load Fee * Minimum $300.00 per container
$15.00
$12.00
Pallet
Pallet
30
Handling (Loose)
$300.00
$375.00
$450.00
$525.00
$625.00
$725.00
$825.00
$950.00
$1000.00
$1050.00
$1100.00
Less Than 100 Pieces
101 to 250 Pieces
251 to 500 Pieces
501 to 800 Pieces
801 to 1200 Pieces
1201 to 1500 Pieces
1501 to 1800 Pieces
1801 to 3000 Pieces
3001 to 4000 Pieces
4001 to 6000 Pieces
Over 6000 Pieces
Container
Container
Container
Container
Container
Container
Container
Container
Container
Container
Container
Order Processing
Order Service Charge
Rush Order - (Orders must be provided at least 24hrs in advance, if not a Rush fee will apply)
$15.00
$50.00
Order
Order
Extra Labor, Services And Material
Grade B Pallet - 40" x 48" - Pallet/Warehouse with Stretch-wrap
Label Application
Labor Charge - Warehouseman
Labor Charge - Warehouseman Overtime
Supplies/Accessorials
$18.00
$0.65
$50.00
$75.00
Cost Plus 15%
Pallet
Label
Man-Hour
Man-Hour
Each
Sorting and Segregation
( 2 to 3 SKU's or Destinations )
( 4 to 6 SKU's or Destinations )
( 7 or more SKUs or Destinations )
$150.00
$195.00
$240.00
Container
$495.00
Market
$50.00
$30.00
$95.00
Container
Container
Container
Drayage
Drayage Charge
Fuel Surcharge Drayage
Chassis Fee
Driver Detention
(Per Extra Move) - Equipment Repositioning Charge
Container
Day
Quarter Hour
Each
* Rates are valid for 30 days from the above date.
* Loose handling rates above assume product will be palletized, if product will be loose loaded outbound double the handling rate will
apply.
* ABF Logistics and the service provider’
s property liability for any loss and/or damage occurring during any cross-docketing services
in no instance shall exceed the lesser of: (1) fifty (50) times the base storage rate on a package, cube, or per cwt. basis, or (2)
$0.25 per pound per lost or damaged package, unless excess property liability coverage is requested by you, documented and
approved at the time of the provided Rate Quotation. When excess property liability coverage is requested, increased rates may be
charged on such increased liability coverage at the current costs and limits which will be indicated on the applicable Rate Quotation.
ABF Logistics shall not be liable for indirect, incidental, special, punitive, multiplied or any other indirect cost, fees, charges
or from delays of any kind arising from performance of services under this Rate Quotation.
* By accepting service hereunder, you agree to the terms, conditions and pricing contained in ABF Logistics tariff MM-100 Series which
is incorporated by reference herein. Services hereunder will be governed by U.S. federal laws and regulations and venue shall be in
a state or federal court located in the State of Arkansas.
V.
Reconsignment, Diversion or Dynamic Rerouting
A.
Definitions of Reconsignment, Diversion or Dynamic Rerouting -
1.
2.
3.
A change in the place of delivery within original destination point.
A change in the destination point.
Relinquishment of shipment at point of origin.
31
B.
Conditions -
1.
Requests must be in writing. ABF Logistics must be satisfied that the party making
the request has the authority to do so. Conditional or qualified requests will not be
accepted. ABF Logistics will not accept disposition instructions printed on the bill of
lading, shipping order, shipping label, or container as authority to reship, return,
reconsign or reroute a shipment.
2.
ABF Logistics will make a diligent effort to execute reconsignment or rerouting
requests, but will not be responsible if the request is not effected.
3.
All charges applicable to the shipment, whether accrued or accruing, must be paid
or guaranteed to ABF Logistics's satisfaction before reconsignment or rerouting will
be executed.
4.
Entire shipments or portions of shipments may be reconsigned/rerouted.
5.
A request to reconsign/reroute a shipment moving under a subsequent bill of
lading will not be considered valid unless and until the initial bill of lading is
surrendered for cancellation, endorsed, or exchanged.
6.
All shipments for export not directly consigned at origin to an export pier dock, pier
terminal, transit shed or wharf will be subject to additional charges.
C.
Charges Charges for Reconsignment/Rerouting Service shall be as set forth in Appendix 1
hereto.
VI.
Customs
A.
Shipments Awaiting Customs Release - Shipments awaiting Customs Release
by U.S. Customs and Border Protection (CBP) or Canada Border Services Agency
(CBSA), will be subject to the applicable detention charges, storage charges
and/or customs examination fees and such charges and fees shall be paid by you.
Detention charges, if any, will be assessed against you. For the purpose of
applying storage rules and charges in connection with shipments moving under
United States Customs Bond, notification to the Deputy Collector of Customs that a
shipment is available for customs inspection will constitute tender of shipment for
delivery.
B.
Export or Import Shipments –
1.
Export or import shipment must be accompanied by all papers necessary to
comply with the requirements of governmental authorities. You must furnish all
invoices, documentary evidence and declarations, including duties, fees and other
32
charges which may be imposed or assessed against the property transported. ABF
Logistics will in no way be responsible for delays to commodities transported nor
for commodities held by any government agency for any reason whatsoever.
Where all necessary requirements of such authorities are not complied with, and
through no fault of ABF Logistics, additional expenses and/or fines are incurred in
order to comply with such requirements, those expenses may be advanced by ABF
Logistics and shall become a charge to the commodities. Delivery will not be made
until such charges are paid or guaranteed by you.
2.
When shipments must be held by ABF Logistics, carrier, or any third party pending
compliance of customs regulations, as a result of you or your representative(s)
improper action or inaction, a charge will be made for the service required as set
forth in Appendix 1 and/or as incurred to clear customs, warehouse, or transport
goods to destination. ABF Logistics shall not be liable for any delay caused by
processing or transporting goods through Customs.
C.
Puerto Rico (Electronic Export Information) - The U.S. Census Bureau requires
the Electronic Export Information (EEI), formerly known as Shippers Export
Declaration (SED) to be filed in the Automated Export System (AES) for each
Puerto Rico or U.S. Virgin Island shipments having a declared value exceeding
$2,500.00, unless otherwise exempt by U.S. federal regulations. You or your
representative will be responsible for preparing and filing all required export
documentation.
D.
Customs Fees –
All Customs fees and charges for services performed by ABF Logistics will be set
forth in Appendix 1.
VII.
Other Terms and Conditions
A.
Notations –
Notations on the bill of lading, manifest, delivery receipt or any shipping document
with regard to rates, charges, terms, conditions or other information will be
considered for information purposes and nonbinding on us, and will neither remove
nor modify applicable actual rates, charges, terms and/or conditions of any
services under this Tariff and the applicable Pricing Schedule or Rate Quotation.
B.
Force Majeure –
In the event ABF Logistics is unable to arrange services as required by the
applicable Pricing Schedule or Rate Quotation and this Tariff as a result of acts of
God, war, insurrection, public enemy, labor dispute, strike, terrorism, intervention
of any government authority, law or regulation, weather, traffic, road conditions, or
33
any other like causes beyond their reasonable control, the obligations of ABF
Logistics and the provisions of such Pricing Schedule or Rate Quotation and this
Tariff shall be suspended for the duration of such period. If ABF Logistics is unable
to perform as a result of a force majeure condition(s), your sole remedy is to
immediately terminate this Agreement by providing written notice to ABF Logistics.
C.
Impracticable Operations -
1.
Services will not be performed at any site for which it is impracticable to operate
vehicles and/or equipment because of:
2.
The condition of roads, streets, driveways, alleys or approaches thereto;
3.
Inadequate loading or unloading facilities; or
4.
Strikes, labor disputes, riots, terrorism, acts of nature, the public enemy, the
authority of law, the existence of violence, disturbances tending to create
reasonable apprehension of danger to persons or property, or any acts beyond the
control of ABF Logistics.
D.
Indemnification –
You agree to indemnify, defend and hold harmless ABF Logistics from and
against any and all claims and causes of action for liabilities and damages,
including, but not limited to, direct, indirect, incidental, consequential, special,
punitive or multiplied damages, fines, penalties, attorneys’fees, litigation and
governmental agency hearing costs incurred by us for: (1) personal injuries,
including death, caused by you or your commodities; (2) property damage,
including environmental damage and restoration caused by you or your
commodities; (3) breach of our agreement, which includes this Tariff, or any other
agreement between you and a third party; (4) non-compliance with any applicable
laws and regulations by you as to services hereunder requested by you; (5) any
claims made against ABF Logistics for alleged or actual wrong in taking custody
of and/or arranging services with respect to your commodities; (6) damage, injury
and/or death to any person or property caused by any commodity during services
provided to you; or (7) violation of another person or an entity’
s rights with regard
to your engagement of us for services.
E.
Other Limitations –
1.
Except for commodity loss and/or damage which occur during services under this
Tariff, you agree that if ABF Logistics is found liable for any damages to you of any
kind resulting from any cause of action, including, but not limited to, in connection
with the operation of any website or your use thereof, any request for estimate of
service charges, services reservation or purchase of services, or services arranged
and/or performed for you, ABF Logistics’liability shall not exceed the total amount
of charges collected from you by ABF Logistics. In no event shall ABF Logistics be
34
liable for any damage of any kind in any amount to the extent that such damage is
covered by any insurance issued to you or available for you to claim against.
2.
In addition to the foregoing, in no event will ABF Logistics be liable and hereby
disclaims responsibility for any indirect, special, incidental, punitive, multiplied or
consequential damages (including, without limitations, damages for loss of
business profits, business interruption, loss of use or data, or any other pecuniary
loss) from delays of any kind or any other acts or omission by ABF Logistics, a
warehouseman, carriers or other service provider whether or not foreseeable or
disclosed which may arise or is caused from any services.
F.
Assignment; Integration; Titles, Headings and Captions -
1.
You may not assign your rights, duties and/or obligations contained in any
agreement with us for services without our express prior written consent. Any such
purported assignment or transfer by you without ABF Logistics’prior written
consent, shall be null and void and of no force or effect, and shall vest no rights or
interests in the purported assignee or transferee.
2.
Your agreement with us for services consists of various electronic and hardcopy
documents, all of which may be executed in counterparts, shall be deemed
originals, and together with this Tariff, shall constitute the same and entire
agreement between you and us.
3.
Titles, heading and captions in this Tariff are provided for convenience only and
shall not be used to construe meaning or intent.
G.
Warranties ALL SERVICES, INFORMATION, SOFTWARE OR ANY WEBSITE
WE
PROVIDE, MAINTAIN AND YOU USE ARE PROIVDED “
AS IS”AND “
AS
AVAILABLE”WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
NON-INFRINGEMENT OR VIOLATIONS OF INTELLECTUAL PROPERTY
RIGHTS. ABF LOGISTICS MAKES NO WARRANTY THAT SERVICES WILL
MEET YOUR EXPECTATIONS OR REQUIREMENTS OR SERVICES
ARRANGED AND/OR MANAGED WILL BE UNINTERRUPTED OR ERROR
FREE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED
THROUGH THE USE OF SERVICES OR WEBSITES ARE DONE AT YOUR
OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR
ANY DAMAGE TO YOUR COMPUTER SYSTEM, DATA LOSS OR ANY OTHER
DAMAGES THAT RESULTS FROM SUCH DOWNLOADS OR WEBSITES. NO
ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY
YOU FROM ABF LOGISTICS OR THROUGH SERVICES OR ITS WEBSITES
WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TARIFF.
35
H.
Authorized Signatures for Tariff Modifications/Electronic Signatures -
1.
President, Vice-President of Sales or Vice-President of Operations for ABF
Logistics are the only representatives or employees authorized to modify the
provisions of this Tariff. Except, as provided herein, no other representative of ABF
Logistics are authorized to modify this Tariff. Moreover, a carrier or its driver, a
warehouseman, any service provider or anyone else are not authorized by ABF
Logistics to modify this Tariff. A bill of lading, warehouseman receipt or other
document signed by a driver, warehouseman or other any service provider only
acknowledges receipt of the commodities. Continued use of a non-ABFLBOL by
you or any other person or entity will not constitute an implied acceptance of the
terms and conditions in such document.
2.
Electronic Signatures, as defined below, shall be recognized as valid forms of
signature on such agreements or contracts, unless specifically excluded through
the Global and National Commerce Act (E-Sign).
3.
Electronic, digital, and digitized signatures shall be defined as:
a. Electronic Signatures: Any sound, symbol, or process (specifically excluding
e-mail) using an electronic medium to identify an individual (i.e., a password
or any of the other forms of electronic signature identified below.)
b. Digital Signature: An electronic signature using asymmetric cryptography to
encrypt and decrypt messages.
c. Digitized Signature: A digital image of a physical signature created either by
scanning a physical signature or using an electronic device to create a
digitally replicated signature
4.
Where ABF Logistics is required to retain records of documents either by statute or
other agreement, such records may be retained by an electronic record of the
electronic, digital or digitized signature.
I.
Confidentiality –
In order to arrange services for your commodities, and in further allowing ABF
Logistics to legally transact business and improve efficiencies, you agree to allow
ABF Logistics and its’parent and sister companies, and their subsidiaries and
affiliates to disclose or release information, including, but not limited to, personal
and services information, for the following purposes: (a) as required by applicable
laws and regulations; (b) to auditors, consultants or attorneys; (c) as necessary to
evaluate or arrange services; or (d) to the extent of non-identifying shipment data,
to third parties who compile and study such information.
36
J.
Hazardous Materials –
1.
You shall comply with all applicable laws and regulations relating to the
transportation of hazardous materials to the extent that any commodities constitute
hazardous materials. You are obligated to notify ABF Logistics prior to any price
quote if any shipments constitute hazardous materials. You shall indemnify, defend
and hold harmless ABF Logistics, carriers, warehouseman, and any other service
provider from any and all liabilities, damages, penalties, fines, including reasonable
attorneys’fees and litigation costs, arising out of your failure to comply with
applicable hazardous materials laws and regulations and notify us. As applicable,
you shall comply with all applicable federal, national, state, provincial and local
laws and regulations, including U.S. Homeland Security, U.S. Transportation
Security Administration, as to importing and exporting, and U.S., Canadian and
Mexican Customs.
2.
Commodities which are subject to USDOT’
s hazardous materials regulations
must be described on bills of lading and shipping orders as shown in those
regulations. Abbreviations must not be used.
K.
Default and Remedies -
1.
Any one of the following shall constitute an event of default and material breach by
you and shall be considered a material breach of this Tariff: (i) your failure to make
any payment to us as required to be made under the terms of this Tariff; (ii) your
failure to perform, keep or observe any covenant, agreement, term, provision or
condition contained in this Tariff; (iii) any inaccurate representation made by or on
the behalf you in or pursuant to the provisions of this Tariff; or (iv) you become
insolvent, or makes a transfer in fraud of creditors, or files a petition in bankruptcy,
or have an involuntary bankruptcy petition filed against you, or make an
assignment for the benefit of creditors, or have a proceeding filed against you
seeking to appoint a receiver, or admit in writing an inability to pay, or generally
fails to pay your debts as they come due.
2.
After the occurrence of any event of material breach or default herein, we shall be
entitled to immediately terminate further services. Termination of services shall not
affect your liability to us by reason of any act, default or occurrence prior to such
termination or any liabilities or obligations of you which accrued prior to termination
and shall survive such termination.
L.
Waivered Tariff Provisions –
No provision of this Tariff shall be waived by us except by a written document
signed by our duly authorized representative. Our failure in any instance to enforce
or insist upon your performance or compliance of any of the terms, covenants or
conditions of this Tariff or to exercise any right or privilege herein, or the written
waiver by us of any of the terms, covenants or conditions of this Tariff, shall not be
construed as thereafter waiving any such term, covenant, condition, right or
37
privilege, but the same shall continue and remain in full force and effect as if no
such forbearance or waiver had occurred.
M.
Severability –
In the event that any provision or part of a provision in this Tariff is determined to
be invalid, unenforceable or unconstitutional by a court or administrative agency
order or ruling, or by legislative enactment or amendment or law, such
determination shall not invalidate the whole Tariff, but this Tariff shall be
construed as if not containing the particular provision or part of a provision held to
be invalid, and the rights and obligations of you and ABF Logistics shall be
construed and enforced accordingly.
N.
Survivability –
Notwithstanding the termination, cancellation or completion of services, any rights,
duties or obligations which have been created and/or incurred due to services
which has not been fully observed, performed, satisfied, enforced or discharged,
shall survive such termination, cancellation or completion of services if brought
within the applicable statutes of limitation period.
O.
Governing Law and Venue –
The terms and conditions of this Tariff, the Pricing Schedule and/or Rate
Quotation between you and ABF Logistics and/or any dispute arising between you
and ABF Logistics are governed by federal laws and regulations of the United
States of America. In the event that any provisions contained within the Pricing
Schedule or Rate Quotation, this Tariff, or any dispute arising between you and
ABF Logistics requires interpretation or application which is not otherwise
provided under federal statutes, common law or preemption, then, the laws of the
State of Arkansas, without regards to its principles of conflicts or choice of laws,
shall apply and govern such matter. Unless provided otherwise herein, any
dispute between you and us must be brought in a court of competent jurisdiction
located in the State of Arkansas.
P.
Class Action Lawsuit Waiver –
You agree not to sue ABF Logistics as a class plaintiff or class representative, join
a class as a member or agree to consolidate your action into or participate as an
adverse party in any way in a class action lawsuit against us. However, nothing
herein limits your rights to bring an individual claim as provided herein.
Q.
Statute of Limitation Period –
Unless provided otherwise herein, any disputes arising under this Tariff and a
Pricing Schedule or Rate Quotation shall be brought within two (2) years from
which the claim accrued.
38
R.
Contract Language –
As to Canadian and Mexico services, Les parties ont specifiquement convenu
d’
avoir ce contrat redige en anglais. The parties intend the foregoing French
sentence to mean, “
The parties have specifically agreed to have the contract
written in English.”Los dos partes solicitaron y acordaron especificamente que
este acuerdo sea escrito en el dioma ingles. The parties intend the foregoing
Spanish sentence to mean, “
The parties specifically agree that the Agreement be
written in the English language.”
S.
Employee Solicitation Prohibited –
You acknowledge the time and expense of ABF Logistics’investment in its
employees, therefore, you agree that from the time services are completed and for
a period of one (1) year after service completion, you shall not directly or indirectly
employ, hire or retain (whether as an employee, consultant or otherwise) any
employee of ABF Logistics who worked for ABF Logistics while ABF Logistics
performed services for you under this Tariff without ABF Logistics’prior written
consent. If you violate this provision, you agree to immediately pay ABF Logistics a
fee of three times the hired employee’
s highest annual salary paid by ABF
Logistics to such employee while employed by ABF Logistics.
T.
Non-Exclusive –
You understand and agree that this is a non-exclusive agreement. You are not
restricted from tendering commodities to other brokers, freight forwarders, thirdparty logistics providers or directly to carriers. ABF Logistics is not restricted from
arranging and/or managing services for other individuals or entities.
U.
Rules of Construction –
References to the singular include the plural and vice versa. Where appropriate,
defined terms herein include lower and upper case letters, e.g., “
services”or
“
Services,”“
pricing schedule”or “
Pricing Schedule.”
VIII.
A.
Website Terms and Conditions of Use
Understanding –
THE FOLLOWING TERMS AND CONDITIONS GOVERN YOUR USE OF OUR
WEBSITE, ABFMULTIMODAL.COM. YOUR VIEWING OR USE OF THIS SITE
WILL CONSTITUTE YOUR AGREEMENT, ON BEHALF OF YOURSELF AND/OR
THE ENTITY YOU REPRESENT TO ALL OF THE TERMS AND CONDITIONS
PROVIDED BELOW. ABF LOGISTICS MAY MAKE FUTURE CHANGES OR
MODIFICATIONS TO SUCH TERMS AND CONDITIONS AT ANY TIME
WITHOUT NOTICE AND YOUR SUBSEQUENT VIEWING OR USE OF
39
ABFMULTIMODAL.COM WILL CONSTITUTE YOUR AGREEMENT TO THE
CHANGES AND MODIFICATIONS. THERE MAY BE ADDITIONAL TERMS AND
CONDITIONS
PROVIDED
THROUGHOUT
ABFMULTIMODAL.COM
GOVERNING YOUR USE OF PARTICULAR FUNCTIONS, FEATURES,
INFORMATION
AND
APPLICATIONS
AVAILABLE
THROUGH
ABFMULTIMODAL.COM.
B.
Use –
Use of abfmultimodal.com is provided solely for you to interact with ABF Logistics
and may not be used, reproduced, duplicated, copied or sold by you, or used for
any other purpose. The use of automated dial-in, inquiry, or screen-scraping
devices, programs, or applications to obtain information through
abfmultimodal.com is strictly prohibited.
C.
abfmultimodal.com Registration –
By using abfmultimodal.com, you agree to provide accurate and current
information about yourself as prompted by the abfmultimodal.com. If you provide
any information that is inaccurate or not current or ABF Logistics has reasonable
grounds to suspect that such information is inaccurate or not current, ABF
Logistics has the right to suspend or terminate your abfmultimodal.com usage.
D.
Changes to abfmultimodal.com –
The content of abfmultimodal.com, including without limitation, the information,
graphics, products, features, functionality, services, and links (collectively the
"Content") may be changed, deleted or updated without notice.
E.
Term –
ABF Logistics may discontinue, suspend or modify abfmultimodal.com at any time
without notice, and ABF Logistics may block, terminate or suspend your and any
user's access to abfmultimodal.com at any time for any reason in its sole
discretion, even if access continues to be allowed to others.
F.
Ownership –
The content of abfmultimodal.com is protected by United States and international
copyright, trademark and other laws. All rights reserved. Specifically, ABF
Logistics, Inc. does not convey to anyone, through allowing access to
abfmultimodal.com, any ownership rights in abfmultimodal.com in any Content
appearing on or made available through abfmultimodal.com. By furnishing
information from this website, ABF Logistics, Inc. does not grant any licenses to
any copyrights, patents or any other intellectual property rights.
40
G.
Disclaimer of Warranty –
ABFMULTIMODAL.COM AND ITS CONTENT ARE PROVIDED "AS IS". ABF
LOGISTICS AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND NON-INFRINGEMENT, REGARDING ANY SUCH
CONTENT
AND
YOUR
ABILIITY
OR
INABILITY
TO
USE
ABFMULTIMODAL.COM AND ITS CONTENT.
H.
Limitation of Liability –
USE OF ABFMULTIMODAL.COM AND ITS CONTENT IS AT YOUR SOLE RISK.
WE WILL IN NO EVENT BE LIABLE TO YOU OR ANY PERSON OR ENTITY
CLAIMING THROUGH YOU FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL,
INCIDENTAL OR OTHER DAMAGES UNDER ANY THEORY OF LAW FOR ANY
ERRORS IN OR THE USE OF OR INABILITY TO USE ABFMULTIMODAL.COM
AND ITS CONTENT INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST
PROFITS, BUSINESS, DATA, OR DAMAGE TO ANY COMPUTER SYSTEMS,
EVEN IF YOU HAVE ADVISED US OF THE POSSIBILITY OF SUCH DAMAGES.
I.
Indemnity –
You hereby release, and agree to indemnify, defend and hold harmless ABF
Logistics and Personnel from any and all claims, demands, causes of actions,
liabilities, damages, costs and expenses, including reasonable attorneys' fees and
all litigation costs, arising out of your use or viewing of abfmultimodal.com and its
Content.
J.
Links to other Websites –
There are links on abfmultimodal.com site which allow you to visit the sites of third
parties. Neither these sites nor the companies to whom they belong are controlled
by ABF Logistics. ABF Logistics makes no representations or warranties
concerning the information provided or made available on such sites nor the quality
or acceptability of the products or services offered by any persons or entities
referenced in any such sites. ABF Logistics has not tested and makes no
representations or warranties regarding the correctness, performance or quality of
any software found at any such sites. You should research and assess risks which
may be involved in accessing and using any software on the Internet before using
it.
K.
Privacy Policy –
You may access the ABF Logistics Privacy Policy governing the use of information
acquired
from
you
through
your
use
of
abfmultimodal.com
at
www.abfmultimodal.com/Resource/privacy.asp.
41
L.
Export –
You assume all responsibility for compliance with all laws and regulations of the
United States and any other country from which you may access
abfmultimodal.com regarding access, use, export, re-export and import of any
Content appearing on or available through abfmultimodal.com. You acknowledge
and agree that you will not export or import any Content to any country to which
export or import is restricted under United States law, that you are not a national of
any such country.
M.
Controlling Law, Venue, Severability and Waivers -
1.
Your use of abfmultimodal.com is governed by and construed in accordance with
the United States federal and State of Arkansas laws and regulations, excluding
the latter’
s conflicts and choice of law provisions. Any cause of action with respect
to abfmultimodal.com must be instituted within one year after the claim or cause of
action has risen or such claim will be barred, and further must be brought in a court
of competent jurisdiction within Sebastian County, Arkansas.
2.
If for any reason a court of competent jurisdiction finds any provision of this Tariff,
or a portion thereof, to be unenforceable, the remaining provisions herein shall be
enforced to the maximum extent permissible.
3.
In no event will we or Personnel be liable for any special, incidental, indirect or
consequential damages (including, without limitation, damages for loss of business
profits, business interruption, loss of use, data or any other pecuniary loss).
4.
Neither the course of conduct between you and us nor trade practice shall act to
modify any of these terms and conditions in this Tariff. The failure of ABF Logistics
to exercise or enforce any right or provision of the Terms of Use or this Tariff shall
not constitute a waiver of such right or provision.
5.
In any dispute between ABF Logistics and you relating to these websites, the
prevailing party on its claims and/or defenses will be entitled to a reasonable
attorney’
s fee, court and litigation costs.
IX.
A.
Privacy
Questions and Answers –
ABF Logistics is committed to protecting your privacy. Please read on for more
information on ABF Logistics’
commitment to your privacy.
1.
Where is my information saved and protected?
Your personal and services information is stored in a central, secure source in our
42
mainframe system. All calls from the Internet to access this information must pass
through our secure site.
2.
How do we protect your credit card information?
All credit card information is encrypted by digital certificates using Secure Sockets
Layer (SSL). Credit card information is then stored on a computer that is not
connected to the Internet. For more information about SSL, read the Secure
Sockets Layer at the VeriSign site.
3.
Does abfmultimodal.com site use cookies?
Certain information is stored in your cookie file; however, none of your personal or
services information is stored in cookies. We believe cookies provide a safe and
secure way to improve the usability of the site. For more information about cookies,
read the Cookie and Privacy FAQ at microsoft.com.
B.
Privacy Policies of other Websites This
site
contains
links
to
other
sites.
abfmultimodal.com
at
http://www.abfmultimodal.com is not responsible for the privacy practices or the
content of other sites.
C.
Information Disclosure to Third Parties -
1.
We employ other companies and individuals to perform services for us, such as
analyzing data, providing marketing assistance, and providing other services. They
have access to your information as necessary to perform those services for us, but
they are not permitted to use it for any other purposes. Your access to our
abfmultimodal.com websites is your unqualified consent for us to release and
provide your personal and/or shipment information to such third parties, or to
federal, state and/or local law enforcement agencies, or judicial or administrative
proceedings, which request us to provide your personal and/or shipment
information to them.
2.
Please note that by using the abfmultimodal.com website, you consent to the
collection and use of this information by us. If we decide to change this privacy
policy, alterations will be posted. ABF Logistics is committed to protecting your
privacy.
3.
We practice permission marketing. If you would like to remove yourself from
receiving
future
messages
please
visit
our
opt-out
page
at
www.abfmultimodal.com/un.asp.
43

ABF Multimodal Tariff MM-100 is available upon request

Transcription

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