Customer Terms and Conditions

A. General

FREIGHT FLEX and Customer will each comply with the applicable provisions of applicable laws, rules and regulations applicable to their respective operations and businesses. FREIGHT FLEX is duly and legally qualified to operate as a property broker as defined by federal law and to provide the Services contemplated herein.

B. Hazardous Materials

Customer shall not tender to FREIGHT FLEX for transportation any hazardous material, as that term is used and defined in the Hazardous Material Transportation Act, 49 U.S.C. § 50101, et seq. In the event Customer does tender hazardous materials to FREIGHT FLEX or the Carriers, Customer shall first provide FREIGHT FLEX with advanced written notice of the product and a current Material Safety Data Sheet for the hazardous material shipment.

Customer agrees that FREIGHT FLEX shall have no liability for and Customer shall indemnify, defend and hold harmless FREIGHT FLEX and its officers, employees, agents and insurers, against all claims, liabilities, losses, fines, reasonable attorney fees and other expenses arising out of or related to the release of any hazardous material, including without limitation, fines or expenses related to the removal or treatment of hazardous material or other remedial action pertaining to the hazardous material under federal or state law, if Customer fails to provide advanced notice prior to tendering hazardous material to FREIGHT FLEX or the Carriers; the contact, exposure or release resulted from the improper packaging or loading or other acts or omissions of the Customer, its employees or agents; or the contact, exposure or release occurred subsequent to the transport of the hazardous material by FREIGHT FLEX or the Carriers.

C. Customs and Export Controls

FREIGHT FLEX will not be responsible for the importation of the cargo or compliance with any related customs, tax or other regulatory procedures/requirements – nor any export controls.

Customer Warranties

By tendering goods to FREIGHT FLEX for transportation, Customer makes the following representations and warranties:

A. Suitability of Goods for Transportation

1) All goods have been properly and sufficiently prepared, packed, stowed, are fully and accurately described, labeled, and/or marked, and the preparation, packing, stowage, labeling and marking are appropriate to any operations or transactions affecting the goods and the characteristics of the goods and the intended mode of transportation; 

(2) the goods are suitable for transportation in or on the intended trailer or container type or mode of transportation; and 

(3) for LTL shipments, any goods susceptible to damage by ordinary handling in the LTL environment must be adequately protected, packaged and marked in such a way to alert FREIGHT FLEX or the Servicing Carrier(s) of the possibility of damage from ordinary handling and must bear appropriate label

B. Sufficient Information and Instructions

Customer will provide all information and instructions that are reasonably necessary for FREIGHT FLEX to effectively arrange for the performance of the transportation and related services requested by Customer in accordance with any applicable laws, rules, regulations or conventions.

C. Accurate Goods Descriptions

Customer will provide detailed and accurate descriptions of any goods tendered for transportation and their accurate weights. Customer is responsible to be aware of and to apply and pay for all licenses, permits or authorities required by governmental authorities to conduct the business and transportation contemplated by Customer.

D. No Tender of Prohibited Goods

Customer will not tender any goods that will or would reasonably be expected to contaminate, taint, corrode, or otherwise adversely impact the quality or condition of other goods being transported, or the trailer/container used in transporting the goods. FREIGHT FLEX will not accept shipments for transportation of the following nature:

(1)  Petroleum Products
(2) Class 1: Explosives (United States Department of Transportation: 1.1, 1.2, 1.3, (3)
(3) Bullion or precious metal objects
(4) Precious Stones or Precious Jewelry
(5) Cash or securities
(6) Valuable works of art and/or antiquities
(7) Live animals
(8) Wine and Spirits (unless shipped in temperature-controlled containers) 
(9) Tobacco Products
(10) Computer chips and components
(11) Mobile telephones and components
(12) Jewelry (except costume jewelry) 
(13) Fur garments
(14) Non-ferrous metals in any form
(15) Pharmaceuticals
(16) Petroleum Products
(17) Explosives and Flammable Gases
(18) Personal Effects
(19) Solar Panels and/or any component parts

Further commodity restrictions may be applicable by the Servicing Carrier. A list of restrictions can be found on the Servicing Carrier’s website. FREIGHT FLEX and/or the Servicing Carrier reserves the right to refuse any shipment at point of acceptance that its representatives deem unacceptable for transit due to any security or safety concern.

E. Handling of Equipment

Customer will cause all empty trailers and containers tendered for loading to be inspected before loading and reject any equipment that is not in apparent suitable condition to protect and preserve the goods during transportation. Customer will promptly notify FREIGHT FLEX of any rejected equipment. 

If Customer requests that FREIGHT FLEX arrange for trailers, containers or chassis to be dropped at a location for Customer’s convenience and left unattended, Customer will pay for loss or damage to such equipment occurring during or because of such possession or use.

F. Authority to Bind Others to Terms

The person or entity tendering the goods to FREIGHT FLEX represents and warrants to FREIGHT FLEX that it has authority to agree to, accept and bind, as applicable, the consignor, consignee, owner and insurer of the goods and others with an interest in the goods or transportation services to these Terms and Conditions. 

Likewise, the consignor, consignee, owner and insurer of the goods or others with an interest in the goods or the transportation services represent and warrant to FREIGHT FLEX that the person or entity tendering the goods to FREIGHT FLEX for transportation is authorized to bind them to these Terms and Conditions and that they agree to, accept and are bound by these Terms and Conditions.

G. Acceptance of Shipment Not a Waiver

FREIGHT FLEX’s or the Servicing Carrier’s acceptance of any shipment will not be a waiver of Customer’s obligation to comply with any obligation in these Terms and Conditions.

H. Access to Customer’s Facilities

Customer will provide the Servicing Carriers with access to the facilities to load or unload the tendered shipments. Access to the facilities by the Servicing Carriers shall be without charge to the Servicing Carriers unless otherwise agreed to in writing between the parties.

Customer is solely responsible for maintaining the loading and unloading facilities in a good and safe condition, and in compliance with all applicable laws, codes and regulations. Customer hereby waives and releases FREIGHT FLEX from any liability for any loss or damage to its facilities or to Customer’s personal property located on such facilities.

Selection of Servicing Carriers

FREIGHT FLEX’s sole responsibility with respect to selection of any Servicing Carriers is to ensure that any such Servicing Carrier holds the applicable authorizations and approvals necessary to perform the underlying transportation services in question. FREIGHT FLEX may engage its affiliates, such as FREIGHT FLEX National Carriers, Inc., as the Servicing Carrier.

Such engagement of affiliated Servicing Carriers will not change FREIGHT FLEX’s status to that of a motor carrier; at all times FREIGHT FLEX will remain liable as a property broker, and the limitations in these Terms and Conditions will continue to apply with respect to all Services arranged by FREIGHT FLEX.

Rates, Fuel Surcharges and Accessorial Charges

A. Rates, Fuel Surcharge and Accessorial Charges

Unless Customer and FREIGHT FLEX have both signed an agreement establishing other Customer-specific pricing or procedures for establishing rates, Customer will pay FREIGHT FLEX the rates, fuel surcharge and accessorial charges included with the rate confirmation or spot quotation issued by FREIGHT FLEX, provide that each rate confirmation or spot quotation provided by FREIGHT FLEX can be supplemented or revised upon timely written notification by FREIGHT FLEX that is not disputed by Customer within four (4) business hours from such notification.

Accessorial charges cover additional services performed in connection with the transportation, including, but not limited to, driver wait time, loading and unloading, cancellation fees, diversion, stop-off in-transit, border crossing fees, etc. The fact that the rate confirmation may specify particular accessorial charges will not be construed to limit the type or amount of assessorial charges that may be assessed to Customer. Other assessorial charges may be invoiced to Customer for the successful delivery of an individual shipment.

B.  Additional Charges Based on Actual Transportation; Mileage

Rates and service confirmations and quotations are good faith estimates based upon information provided to FREIGHT FLEX, but final rates and services may vary based upon the cargo actually tendered, unexpected circumstances, incorrect or incomplete information, and additional services provided by FREIGHT FLEX or the Servicing Carriers that were not contemplated at the time of tender. Customer acknowledges and agrees that agreed upon rates may, in FREIGHT FLEX’s sole discretion, be revised to reflect the actual goods and/or operational characteristics of the shipment that was tendered, and the actual Services required or performed.

If FREIGHT FLEX’s rates are based on mileage, mileage will be calculated using predetermined mileage as negotiated or, if none, via the mileage guide (including version) used by FREIGHT FLEX as of the date the goods in question are physically tendered to a Servicing Carrier retained by FREIGHT FLEX to perform the Services.

C.  Taxes and Duties Not Included

Unless otherwise expressly stated in the rate quotation or confirmation, any state, county or harmonized sales taxes, or other use or value-added taxes, duties or similar charges are not included, and Customer will be liable for such taxes, duties or charges.

Payment Terms

Customer will pay the applicable rates and charges for the Services without offset within thirty (30) days of receiving the invoice, with interest accruing monthly at a rate of one percent (1%) per month (or the highest amount allowed by law, whichever is higher) on any unpaid balance. Customer will also be liable for any expenses, including attorney fees and collection costs/commissions, FREIGHT FLEX incurs in collecting its rates and charges. In no event will Customer remit payment to any Servicing Carrier directly or otherwise pay any third-party with respect to Services provided by FREIGHT FLEX, and any such payment will not relieve Customer of its payment obligations to FREIGHT FLEX.

Overcharge and Undercharge Claims

The time limit for Customer or FREIGHT FLEX to file initial claims for alleged undercharges or overcharges related to the Services will be one hundred and eighty (180) days from the date of delivery of the shipment. Failure to file a claim challenging initial charges within that one hundred and eighty (180)-day period will forever bar any action at law for recovery of such charges. The time limit for Customer and FREIGHT FLEX to bring an action at law to collect alleged undercharges or overcharges with respect to the Services will be eighteen (18) months after delivery of the shipment. Failure to bring a suit within such eighteen (18) month period will be a complete and absolute defense against any such claim, regardless of any extenuating or mitigating circumstances or excuses of any nature whatsoever.

Customer will provide sufficient information to allow FREIGHT FLEX to conduct an investigation and pay or decline any overcharge or duplicate payment claim. Claims will include the name of the claimant, its file number and the amount of the refund sought to be recovered and will be accompanied by the original freight bill along with all other documents or data in the possession of the claimant that substantiate the basis for the claim. Claims for duplicate payment will be accompanied by the original freight bill(s) for which charges were paid and by applicable payment information.

Additional Terms for Intermodal Transportation

In addition to the terms contained in these Terms and Conditions, including but not limited to those in Section 4 the following terms apply to any intermodal transportation requested by Customer or arranged by FREIGHT FLEX.

A. Applicability of Rail Carrier’s Published Conditions

All intermodal transportation provided by a Servicing Carrier (each a “Rail Servicing Carrier”) is subject to the terms, conditions, requirements, limitations, restrictions and procedures of the applicable Rail Servicing Carrier’s intermodal directory, rules & policies/procedures, tariff, shipping guide or agreement in effect at the time of shipment and published on the Rail Servicing Carrier’s website (the “Rail
Conditions”). 

The Rail Conditions establish limitations of liability, cargo claims procedures and provisions, commodity restrictions, loading, blocking and bracing requirements, indemnification obligations, payment terms, arbitration of disputes requirements and other important restrictions. Customer should be familiar and comply with the provisions of the Rail Conditions before becoming involved in any intermodal transportation movement. By tendering goods to FREIGHT FLEX for intermodal transportation, Customer and any person claiming an interest in the goods or their transportation through Customer will be conclusively presumed to have agreed to and will be obligated to comply with the Rail Conditions.

B.  Customer’s Responsibility for Blocking & Bracing

Customer will ensure that the goods have been packaged, loaded, blocked and braced within the intermodal container in a manner to prevent shifting during intermodal transportation and in accordance with applicable industry standards, including the Intermodal Loading Guide of the Association of American Railroads, the Rail Conditions and other guidelines of the applicable Rail Servicing Carrier.

C. Accurate Weights

Customer will ensure that the weight of the goods and the intermodal container/trailer will not exceed applicable weight limitations and will be accurately stated in Customer’s shipping instructions.

D. Prohibited and Restricted Goods

Customer will not tender any goods for intermodal transportation that are designated as prohibited under the Rail Conditions. Prohibited commodities include, but are not limited to, hazardous wastes, garbage, explosives, metal coils, scrap metal or parts and sodium compounds or other commodities that would reasonably be expected to contaminate or otherwise render the trailer or container unsuitable for future shipments.

Customer will comply with any special procedures applicable to goods designated as restricted under the Rail Conditions. Restricted commodities include but are not limited to bulk commodities, rolled paper, household goods, metal banding, dense metal items, rubber shavings, tire fabric, over-dimension loads, currency, postage stamps and mail.

Other commodities that could be considered to pose a safety or health issue, are easily perishable, are considered to be of extraordinary value, or need temperature protective services may also be designated as restricted commodities and be subject to limitations or special requirements. Before tendering any such goods for transportation, Customer will make the required prior arrangements with FREIGHT FLEX, such as obtaining special rates for that commodity, signing any special indemnity or commodity agreement, and agreeing to comply with approved commodity loading and equipment inspection protocols.

E. Cross-Border Issues

Special rules and requirements apply to shipments crossing borders between the United States and Canada or Mexico. FREIGHT FLEX and the Rail Servicing Carriers will hold shipments at the origin ramp or at intermediate ramps or may prevent the shipment from entering the terminal gate if customs and other documentation is not provided at the time that the shipment arrives at the origin terminal. Customer is responsible for all drayage, loading and unloading charges; storage and equipment use charges; train set-outs; customs brokerage costs; filing costs; and other costs associated with the government inspections or documentation requirements assessed by the Rail Servicing Carriers with respect to cross-border shipments.

F. Special Intermodal Fuel Surcharge and Accessorial Charges

On intermodal shipments, Customer will pay any applicable intermodal-specific fuel surcharges and/or accessorial charges contained within FREIGHT FLEX’s standard intermodal fuel surcharge exhibit which is included in either the rate confirmation or spot quotation issued by FREIGHT FLEX to the Servicing Carrier.

G. Additional Charges

In addition to the intermodal linehaul rates, fuel surcharge and accessorial charges assessed by FREIGHT FLEX, any additional charges levied on FREIGHT FLEX under the Rail Conditions and not accounted for in the agreed-upon rate will be passed through to and will be the responsibility of Customer.

Additional Terms for Flatbed Transportation

In addition to the terms contained in these Terms and Conditions, including but not limited to those in Section 4, the following terms apply to any transportation requested by Customer or arranged by FREIGHT FLEX that requires use of flatbed trailers.

A. Equipment Loading Instructions Before Tender

Customer will provide FREIGHT FLEX with instructions in advance specifying the equipment required to properly secure Customer's freight which may include, but is not limited to: tarp(s), straps, winches, chains, and binders.

B. Additional Charges

Over-dimensional or specialized equipment charges may be assessed by FREIGHT FLEX. Additionally, any applicable government-issued over- dimensional permit costs or bonds will be invoiced to Customer. Permit costs include the actual state/provincial over-dimensional or overweight permit costs, transceiver fees, and administrative costs associated with obtaining the permits/ bonds.

Additional Terms for Partial Truckload

A. Co-mingling/Blending for Freight.

Customer acknowledges and agrees that FREIGHT FLEX may co-mingle or blend Customer’s freight with the freight of other third- party shippers for partial truckload movements.

Cargo Loss, Damage and Delay Liability and Limitations.

A. Basis for FREIGHT FLEX’s Liability

FREIGHT FLEX will have no liability for any claims for loss, damage, delay, injury or shortage to any goods for which it arranges the transportation except to the extent such claims are directly and proximately caused by FREIGHT FLEX’s gross negligence or willful misconduct.

B. Limited Liability for FREIGHT FLEX’s Negligence

For U.S. and Canadian shipments, in the event that any judgment, ruling or verdict deems that FREIGHT FLEX’s negligence directly and proximately caused a cargo loss, damage, delay, injury or shortage, Customer agrees that FREIGHT FLEX’s liability will be limited to the lesser of: (i) the transportation charges assessed by FREIGHT FLEX and paid by Customer with respect to the Services involving such goods; or (ii) Five Thousand US Dollars ($5,000.00).

C. Liability of Servicing Carriers

Customer acknowledges and agrees that the actual transportation services performed by the Servicing Carrier are subject to the terms of the agreements between FREIGHT FLEX and the Servicing Carrier or those terms that may be maintained in tariffs, bills of lading, or similar documentation maintained by the Servicing Carrier. 

Unless higher limits have been established in accordance with Section 2 or 12e, the Servicing Carrier’s liability for loss, damage, delay, injury, or shortage of goods shall be subject to including the terms contained in 49 USC 14706 et seq. and shall be limited by mode of transportation or types of goods as follows:

D. Cargo Liability in Mexico

For Mexico shipments, neither FREIGHT FLEX nor any Servicing Carrier will have any liability for loss, damage, delay, injury or shortage of goods or shipments occurring in Mexico. If this geographical liability limitation is judicially or otherwise determined to be ineffective for any reason whatsoever, then the Servicing Carrier’s liability for loss, damage, delay, injury or shortage in Mexico will be limited to terms of the applicable Mexican law (article 66, 67, 68 & 69 of Ley de Caminos Puentes y Autotransporte Federal) as published in the Diario Oficial on Dec. 22, 1993. Claims for such Mexican losses to be asserted within the time limits provided under Mexican law (including Articles 66 & 67 of the Ley de Caminos Puentes y Autotransporte Federal as published in the Diario Oficial de la Federación on December 22, 1993, FREIGHT FLEX shall have no liability for loss, damage, delay, injury or shortage of goods or shipments occurring in Mexico under any circumstances.

E. Insurance Coverage

All FREIGHT FLEX insurance policies are contingent based on FREIGHT FLEX’s contracted Carrier’s insurance. These contingent policies cover Goods in transit within the Continental United States and Canada. FREIGHT FLEX does not provide any insurance coverage for shipments within the country of Mexico. Neither FREIGHT FLEX nor any Carrier will have any liability for loss, damage or delay of Goods or shipments occurring in Mexico.

FREIGHT FLEX requires all Carriers to demonstrate $100,000.00 in cargo coverage subject to terms and conditions therein.  Any additional insurance must be agreed in writing and approved by FREIGHT FLEX on a per load basis for an additional cost prior to dispatch. FREIGHT FLEX is not liable if Customer, for any reason whatsoever, fails to recover a loss in whole or in part from the insurer under any applicable policy, even in the event the premium charged by the insurer may be different from FREIGHT FLEX’s charge to the Customer. Any coverage on the Goods will be subject to the terms and conditions of the specific policy or policies procured. Customer acknowledges and agrees that FREIGHT FLEX’s role is limited to facilitating placement of coverage with entities licensed to sell insurance and that FREIGHT FLEX is not in the business of selling insurance or insuring risk.

Customer is responsible for maintaining property insurance covering the Goods, both for the Goods and in transit, including loading and unloading.

FREIGHT FLEX requires all Carriers to demonstrate:

(1) Automotive or Fleet Liability Insurance in amounts not less than: Bodily Injury/Property Damage $1,000,000.00 per person; $1,000,000.00 per occurrence.

(2) Motor Truck Cargo Insurance in an amount not less than $100,000.00 per truckload in order to compensate shipper, consignee or the beneficial owner of the shipment for any loss or damage thereto.

FREIGHT FLEX is in the business of arranging for transportation by motor carrier and or transportation intermediaries and is neither trained, licensed nor otherwise qualified to assess, analyze, or predict the likelihood of a motor carrier’s safe operations. FREIGHT FLEX reasonably relies upon the Federal and State Governments to only allow safe motor carriers to operate on the public roads and is under no duty to investigate individual motor carriers’ operations. It is FREIGHT FLEX’s practice to obtain a Certificate of Insurance for each motor carrier. It is FREIGHT FLEX’s practice to only retain motor carriers demonstrating a minimum of $750,000 public liability insurance and $100,000 cargo insurance. However, FREIGHT FLEX has no duty to obtain, review or read motor carriers’ insurance policies. Nor does it have any duty to discover policy limitation, exclusions or endorsements not specified on the Certificate of Insurance. FREIGHT FLEX has no duty to discover the value of Customers’ Goods or arrange for Carriers with “adequate insurance coverage” unless specifically requested in writing to do so by Customer prior to shipment and on a shipment by shipment basis.

F. Defenses to Liability

Neither FREIGHT FLEX nor any Servicing Carrier will be liable for any loss, damage, delay, injury or shortage of goods or equipment to the extent due to: 

(1) packaging, loading, unloading, blocking, bracing or securing of the goods;
(2) inherent vice or defect in the goods transported, including rusting of metals, swelling of wood caused by humidity, moisture or condensation, deterioration of perishable products, or damages caused by heat or cold or altitude;
(3) force majeure events as described in these Terms and Conditions;
(4) an act, omission or default of Customer;
(5) shipments stopped and held in transit at Customer’s request;
(6) goods that violate any applicable law or regulation, have not been accurately described, or have been loaded in a trailer or container so that the combined weight exceeds applicable weight limits;
(7) loss, damage, delay, injury or shortage occurring before pick-up or after delivery, or
(8) the freezing or overheating of goods shipped in dry trailers or containers, unless Customer specifically requests freeze and/or heat protection services on or before tendering the shipment to FREIGHT FLEX in accordance with these Terms and Conditions and pays an additional charge for such services.

G. Liability 211 Limitations for Transit Delays

REIGHT FLEX WILL NOT BE RESPONSIBLE FOR COMPLYING WITH ANY TRANSIT, PICK-UP OR DELIVERY APPOINTMENT DATES OR TIMES OR FOR MISSED APPOINTMENTS AND WILL NOT BE LIABLE IN ANY WAY FOR TRANSPORTATION DELAYS OR THEIR CONSEQUENCES. IN NO EVENT SHALL A TIME QUOTATION BE CONSIDERED A GUARANTEE OF ANY TRANSIT, PICK-UP OR DELIVERY TIME. FREIGHT FLEX will request
Servicing Carriers to perform the transportation with reasonable dispatch as defined by federal common law. 

The maximum liability of a Servicing Carrier that has failed to transport a shipment with reasonable dispatch will be the lower of
(a) Fifty percent (50%) of the linehaul charges payable for the late shipment or
(b) the losses suffered by Customer, such as deterioration of the goods, alternative transportation charges for the late shipment or a replacement shipment, fines or charges assessed by the receiving facility, and equipment or facility storage or detention or demurrage charges.

Claims Handling and Procedures

A. Time Limit on Filing Claims and Bringing Suits

Customer must file a written claim for any loss, damage, delay, injury or shortage of goods within (a) nine (9) months of shipment’s delivery date (or the scheduled delivery date if never delivered) if the loss, damage, delay, injury or shortage occurred in the United States or Canada or (b) sixty (60) days of shipment’s delivery date (or the scheduled delivery date if never delivered) if the loss, damage, delay, injury or shortage occurred in Mexico. Any lawsuit or other legal action arising from loss, damage, delay, injury or shortage of goods must be commenced against Servicing Carrier and FREIGHT FLEX within (a) two (2) years and one (1) day of denial of all or any part of such claim if the loss, damage, delay, injury or shortage occurred in the United States or Canada during motor carrier transportation, (b) one (1) year of denial of all or any part of such claim if the loss, damage, delay, injury or shortage occurred in the United States or Canada during rail transportation, or (c) one hundred twenty (120) days of denial of all or any part of such claim if the loss, damage, delay, injury or shortage occurred in Mexico. Failure to file the claim or initiate the lawsuit within those time periods will waive Customer’s right to recover for such loss, damage, delay, injury or shortage.

B. Documentation of Cargo Claims

FREIGHT FLEX will facilitate the filing of the cargo loss and damage claim with the appropriate Servicing Carrier if Customer requests FREIGHT FLEX to do so and Customer provides FREIGHT FLEX with sufficient written documentation of the claim within the time limits stated in these Terms and Conditions. Sufficient documentation will include the original bill of lading, evidence of the freight charges (if any), invoices, certifications, photographs, and other documentation requested by the Servicing Carrier. 

Customer agrees that any cargo loss, damage or shortage claim filed with FREIGHT FLEX must have a minimum claim amount of one hundred fifty dollars ($150.00 USD). Any claim filed by Customer that is less than one hundred fifty dollars ($150.00 USD) will be rejected by FREIGHT FLEX. In addition to the standard documentation required to support a cargo claim in the United States, cargo claims involving services rendered within Mexican territory (regardless of point of origin or destination) must also be supported by a copy of the Servicing Carrier’s carta de porte (which is the confirmation of the shipping instructions with all information necessary for the carrier to perform the service), Customs Declaration, if applicable, and the Inspection or Surveyor’s Report of Damage, if available, for the lost or damaged cargo. These documents may be provided in copy or facsimile or other electronic form. They may also be extracted or excerpted from other documents.

C. Claims Procedures under Federal Regulations

Claims will be filed, processed, investigated, and settled in accordance with procedures established by 49 CFR Part 370 (and interpreted by federal common law).

D. Concealed Damage; Notations on Delivery Receipt

Customer must report concealed damage in writing within five (5) calendar days from the date of delivery. If the loss, damage, delay, injury, or shortage is not noted on the bill of lading or delivery receipt, the goods are considered to have been received and delivered in good condition; thereafter, customer will be obligated to offer reasonable evidence that loss, damage, delay, injury, or shortage did not occur while the goods were in the consignee’s possession.

E. No Offsets

Customer will not withhold or set-off outstanding invoices for claims of loss, damage, delay, injury, or shortage of goods and will pay all invoices in full.

F. Mitigation; Salvage Allowance

Customer is obligated to mitigate its damages for loss, damage, delay, injury or shortage of goods and is not entitled to abandon the goods to FREIGHT FLEX or the Servicing Carrier. Customer must promptly provide disposition instructions for handling of damaged goods. Any claim for loss, damage, delay, injury, or shortage of goods will nevertheless be reduced by a reasonable salvage allowance (even if Customer does not permit the goods to be salvaged) and by reasonable storage, equipment use charges or other costs incurred while waiting for disposition instructions, as such salvage allowance and other costs are determined by FREIGHT FLEX in its discretion.

G. Seal Procedures

Unless otherwise agreed by FREIGHT FLEX, Customer is responsible for applying the seal to any trailer or container tendered for Services. For shipments of food or certain other commodities, Customer will apply 1.5 mm diameter or greater cable seals If the seal originally applied to the trailer or container is intact upon delivery, neither FREIGHT FLEX nor the Servicing Carrier will be liable for shortage or theft unless there is physical evidence of unauthorized entry into the trailer or container while it was in the possession of the Servicing Carrier and proof of actual damage or loss of goods. 

Shortage or theft claims must be supported by seal records and actual loading and unloading records. Such absolution of liability for shortage or theft will also occur if the seal is broken
(1) at the direction and under the supervision of a governmental authority and is resealed after inspection by such governmental authority;
(2) because it becomes reasonably necessary to do so to inspect, reposition, or protect the goods or the trailer/container or to comply with applicable laws or regulations; or
(3) at the direction of the Customer. 

The Servicing Carrier will be requested to document the breaking of the original seal and application of a new seal in such circumstances. A broken seal, missing seal, tampered seal, mismatched seal number or other seal integrity issue alone is not sufficient to support a claim; claimant must provide additional evidence which supports actual loss, damage, shortage or contamination of the goods. The consignee may not refuse delivery of a shipment, even for food grade loads, due to broken or missing seals unless there is direct physical evidence of product tampering or contamination beyond the broken or missing seal. Contamination claims must be supported by appropriate quality inspections outlining the full actual loss.

G. Seal Procedures

Unless otherwise agreed by FREIGHT FLEX, Customer is responsible for applying the seal to any trailer or container tendered for Services. For shipments of food or certain other commodities, Customer will apply 1.5 mm diameter or greater cable seals If the seal originally applied to the trailer or container is intact upon delivery, neither FREIGHT FLEX nor the Servicing Carrier will be liable for shortage or theft unless there is physical evidence of unauthorized entry into the trailer or container while it was in the possession of the Servicing Carrier and proof of actual damage or loss of goods. 

Shortage or theft claims must be supported by seal records and actual loading and unloading records. Such absolution of liability for shortage or theft will also occur if the seal is broken
(1) at the direction and under the supervision of a governmental authority and is resealed after inspection by such governmental authority;
(2) because it becomes reasonably necessary to do so to inspect, reposition, or protect the goods or the trailer/container or to comply with applicable laws or regulations; or
(3) at the direction of the Customer. 

The Servicing Carrier will be requested to document the breaking of the original seal and application of a new seal in such circumstances. A broken seal, missing seal, tampered seal, mismatched seal number or other seal integrity issue alone is not sufficient to support a claim; claimant must provide additional evidence which supports actual loss, damage, shortage or contamination of the goods. The consignee may not refuse delivery of a shipment, even for food grade loads, due to broken or missing seals unless there is direct physical evidence of product tampering or contamination beyond the broken or missing seal. Contamination claims must be supported by appropriate quality inspections outlining the full actual loss.

H. Temperature Controlled Shipments (other than Intermodal)

Temperature Controlled Shipments (other than Intermodal). Neither FREIGHT FLEX nor any Servicing Carrier is responsible for any damage or loss to goods requiring protection from heat or cold (including any goods governed by the U.S. Food and Drug Administration) unless Customer, in advance, provides FREIGHT FLEX with written notice and instructions for handling the shipment, including but not limited to the temperature at which the refrigerated trailers should be set during transportation, and an authorized FREIGHT FLEX representative (at the Manager or Director level or higher) has signed the notice and provided special rates for such commodities. A bill of lading will not be considered “notice” of handling requirements and will not be binding.

I. Intermodal Shipments Requiring Protection from Heat or Cold

Neither FREIGHT FLEX nor any Rail Servicing Carrier will have any responsibility whatsoever, either in whole or in part, for any loss or damage resulting from a failure to protect a shipment against heat, cold, or the elements in general, including, but not limited to that arising from any equipment failure, damage, and/or shipment delays. The issuance or inclusion of instructions on shipping documents regarding temperature protection (e.g., shipments requiring tarping, transportation in temperature-controlled containers or other protection from heat or cold) will not be binding on FREIGHT FLEX nor any Rail Servicing Carrier unless and until FREIGHT FLEX or the Rail Servicing Carrier agrees in writing to be bound by such terms.

IMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES

IN NO EVENT WILL FREIGHT FLEX OR ANY SERVICING CARRIER BE RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, INCOME OR SAVINGS, REGARDLESS OF WHETHER FREIGHT FLEX OR ANY SERVICING CARRIER HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES OR SHOULD HAVE KNOWN THE POSSIBILITY OF SUCH DAMAGES. FREIGHT FLEX’S TOTAL LIABILITY WITH RESPECT TO ANY CLAIMS OR DAMAGES (OTHER THAN CLAIMS FOR LOSS, DAMAGE, DELAY, INJURY OR SHORTAGE OF GOODS WHICH SHALL BE GOVERNED BY THE LIMITATIONS IN SECTION 12) ARISING FROM OR RELATED TO SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS WILL BE LIMITED TO THE AMOUNT CHARGED BY FREIGHT FLEX WITH RESPECT TO THE SERVICES SPECIFICALLY GIVING RISE TO SUCH CLAIMS OR DAMAGES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES AS TO WORKMANSHIP OR FITNESS FOR A PARTICULAR PURPOSE.

Force Majeure

FREIGHT FLEX and the Servicing Carrier will not be liable for any failure to perform, including failure to timely perform, the Services where such failure is wholly or partially due to an act of God, flood or other natural disaster, war, epidemics, pandemics, or government-instituted quarantines, shelter-in place orders, embargo, fire, weather, explosion, riot, civil commotion, act of terrorism, closure of highways, marine or air ports or other transportation infrastructure, restriction by government or other authority, strikes, lock-outs, failure of suppliers, or to any cause whatsoever that is beyond the direct and exclusive ability of FREIGHT FLEX or the Servicing Carrier to control, or that could not be reasonably anticipated by FREIGHT FLEX or the Servicing Carrier.

Refused or Rejected Shipments; Disposal

On refused, rejected or other shipments where the Servicing Carrier is unable to deliver a shipment or part of a shipment, to its intended final destination, FREIGHT FLEX will be entitled to recover any and all costs in any way associated with the storage of any goods and will have no liability arising from or related to such storage or its arrangement. At its sole option, FREIGHT FLEX may arrange for deposit of the goods in a public warehouse or storage facility under the Customer’s name so that storage fees do not accrue against FREIGHT FLEX. If Customer fails to give FREIGHT FLEX instructions for the disposal of undeliverable, refused or rejected shipments within a reasonable time, FREIGHT FLEX may sell or otherwise dispose of the goods without further liability.

Severability; Entire Agreement

If a court of competent jurisdiction determines that any portion of these Terms and Conditions results in a violation of any law or is invalid or unenforceable, that portion of these Terms and Conditions will be severable and the remaining provisions of these Terms and Conditions will continue in full force and effect. These Terms and Conditions, any FREIGHT FLEX-issued rate quotation or confirmation and the documents referenced herein constitute the full and complete understanding and agreement of Customer and FREIGHT FLEX and supersedes all prior understandings, whether oral or written. FREIGHT FLEX has not made any representation, promise, inducement or statement which is not stated in these Terms and Conditions, and FREIGHT FLEX will not be bound by or liable for any alleged representation, promise, inducement or statement of intention not so stated.

Non-Waiver

Customer’s or FREIGHT FLEX’s delay or failure to insist upon performance of any of these Terms and Conditions or to exercise any of its right or privileges will not be construed as waiving any such terms, conditions, provisions, rights, or privileges, all of which will continue and remain in full force and effect as if no forbearance or waiver or delay had occurred. Customer’s or FREIGHT FLEX’s consent or approval to any act requiring consent or approval will not be deemed to waive or render unnecessary consent or approval of any subsequent similar act.

Dispute Resolution; Choice of Law; Choice of Forum

The terms of Sections 12 and 13 of these Terms and Conditions will govern the processing of claims for loss, damage, delay, injury, or shortage to goods transported, or accepted for transportation in intrastate, interstate or foreign commerce. No state laws shall apply to cargo claims in any manner. FREIGHT FLEX and Customer agree to cooperate fully with one another in connection with the resolution of any dispute that may arise in connection with the Services provided by FREIGHT FLEX. 

If representatives of FREIGHT FLEX and Customer are unable, after reasonably diligent effort, to resolve any dispute or controversy, the matter may, by mutual agreement, be referred to binding arbitration, or either party may resort to litigation. Any civil action shall be brought by either party exclusively in the federal and/or state courts serving Tarrant County, Texas; and, such courts shall have jurisdiction over the parties and venue will be proper for such suits in Tarrant County, Texas. Except to the extent federal transportation law applies, the laws of the state of Texas will apply, without regard to its choice or conflict of laws rules, to these Terms and Conditions and the Services contemplated herein. Each Party hereby irrevocably waives any and all rights it has or may acquire in the future to request a trial by jury in any action or proceedings.

Independent Contractor; Relationship between Customer, FREIGHT FLEX, and Servicing Carriers

FREIGHT FLEX’s and Customer’s relationship is that of independent contractors, and their respective employees are under the exclusive management and control of the party employing such persons. The Servicing Carrier engaged by FREIGHT FLEX will have sole and exclusive control over the manner in which it performs the actual transportation, including the operations of all vehicles and equipment used to perform the transportation. The Servicing Carriers and their drivers, employees or representatives will not, under any circumstances, be deemed employees or agents of FREIGHT FLEX or involved in any kind of joint venture and/or partnership with FREIGHT FLEX.

The foregoing notwithstanding, FREIGHT FLEX and the Servicing Carriers may agree to designate FREIGHT FLEX to act as the Servicing Carrier’s agent for the sole purpose of collecting the agreed-to freight charges from Customer related to the Services. Except for such specific designation, none of the terms of these Terms and Conditions, or any act or omission of either Customer or FREIGHT FLEX will be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, employer/employee relationship between Customer, FREIGHT FLEX, or the Servicing Carriers.