Oncarriage, LLC. (a subsidiary of Nuvocargo Inc.) with its principal place of business at 154 Grand Street, New York, NY 10013, for itself and on behalf of its affiliated companies and divisions which are also deemed parties to these Brokerage Terms and Conditions (the “Agreement”), collectively hereinafter referred to as “Broker”, in its capacity as an authorized property broker, provides a service that allows, via the website at nuvocargo.com (the “Site”), or via mobile phone or email, third parties registered as “Customers” (as further defined below) to post or request shipments requiring over-the-road transportation (collectively, with the Site and all services provided therein, the “Service”). As used herein, the term “Customer” means any entity establishing an Account as a customer. In order to use the Service, whether requesting Services via the Site or otherwise, Customers must register for an account on the Site (“Account”) and provide certain information as prompted by the registration form. Customer represents and warrants that all required registration information it submits (whether via the Site or otherwise) is truthful and accurate and that Customer will maintain the accuracy of such information. The Service, and this Agreement, apply only to Broker’s arrangement of for-hire motor carrier transportation regarding shipments moving to, from or within the United States, Mexico and Canada and do not apply to any other services that Broker may provide including, but not limited to, customs brokerage services.
BROKER ENTERS INTO THIS AGREEMENT, AS AMENDED FROM TIME TO TIME BY BROKER AND AS IN EFFECT ON THE DATE A SHIPMENT IS POSTED TO THE SERVICE BY CUSTOMER. BY ACCESSING OR USING THE SERVICE, YOU, “CUSTOMER”, ARE ACCEPTING THIS AGREEMENT, ON BEHALF OF YOURSELF, THE COMPANY, ENTITY OR ORGANIZATION THAT YOU REPRESENT, AND THE OWNER OF THE SHIPMENT BEING IDENTIFIED BY YOU. YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT, ON BEHALF OF YOURSELF, ON BEHALF OF THE CUSTOMER THAT YOU IDENTIFY AS WHEN ACCESSING THE SERVICE, AND ON BEHALF OF THE OWNER OF THE SHIPMENT IDENTIFIED BY YOU. ANY TERMS AND CONDITIONS ON ANY TRANSACTIONAL OR SHIPMENT-SPECIFIC DOCUMENT, INCLUDING, BUT NOT LIMITED TO, ANY BILL OF LADING, DOCK RECEIPT OR SIMILAR DOCUMENTATION EXCHANGED BETWEEN THE PARTIES OTHER THAN THIS AGREEMENT SHALL NOT APPLY TO ANY SERVICES PERFORMED UNDER THIS AGREEMENT AND SHALL NOT BE BINDING ON OR APPLICABLE TO BROKER. YOU MAY NOT ACCESS OR USE THE SERVICE OR ACCEPT THIS AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD, HAVE FULL LEGAL CAPACITY AND IN THE CASE OF A LEGAL REPRESENTATIVE, HAVE FULL AUTHORITY TO REPRESENT THE STATED CUSTOMER. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE. BROKER MAY TERMINATE YOUR ACCESS TO AND ABILITY TO USE THE SERVICE AT ANY TIME, IN ITS SOLE DISCRETION WHETHER WITH OR WITHOUT CAUSE. THIS AGREEMENT APPLIES EXCEPT TO THE EXTENT IT CONFLICTS WITH, OR IS EXPRESSLY WAIVED BY, A WRITTEN CONTRACT SIGNED BY AN OFFICER OF BROKER. UPON THE REASONABLE REQUEST OF BROKER, CUSTOMER SHALL PROVIDE ALL DOCUMENTATION AND OTHER INFORMATION REQUESTED IN CONNECTION WITH APPLICABLE “KNOW YOUR CUSTOMER” AND ANTI-MONEY-LAUNDERING RULES, REGULATIONS AND POLICIES OF BROKER.
The Service includes a platform whereby Customer can request pricing for a specific shipment (each an “Order”). Customer is responsible for providing, and shall provide, all information requested by the Service (“Order Information”), and warrants and represents that all such Order Information is accurate and complete. Broker will provide a price quote (“Quote”) to Customer via the Service based on the Order Information input into the Service. BY PROVIDING A QUOTE, BROKER IS NOT GUARANTEEING THAT IT WILL BE ABLE TO ARRANGE FOR REQUESTED TRANSPORTATION, BUT WILL USE COMMERCIALLY REASONABLE EFFORTS TO DO SO. The Service will give Customer the option of accepting the Quote. BY ACCEPTING THE QUOTE, VIA THE FUNCTIONALITY PROVIDED BY THE SERVICE, CUSTOMER IS AUTHORIZING BROKER TO ARRANGE FOR TRANSPORTATION IN ACCORDANCE WITH THE ORDER INFORMATION, AND AGREES TO PAY THE PRICE STATED IN THE QUOTE.
Customer understands and agrees that Broker functions as an independent entity, and not as a carrier, in selling, negotiating, providing and arranging for transportation for compensation, and that the actual transportation of shipments tendered to Broker shall be performed by third-party motor carriers (“Servicing Motor Carriers”). Broker and Customer represent and warrant that their relationship is that of independent contractors and that the respective employees are under their respective exclusive management and control. Nothing in this Agreement shall be deemed to require Broker to provide Services upon request of Customer and Broker reserves the right to accept or decline, in its sole discretion, any particular request for Services. Customer fully understands, acknowledges and agrees that Broker does not render Services related with multimodal transportation for the Mexican market.
Broker will charge and Customer will pay the rates and charges set forth in the Quote without offset. Customer agrees to pay Broker without offset or withholding of any type and within fifteen (15) days of receiving the invoice, with interest accruing monthly at a rate of one percent (1%) per month on any unpaid balance. Customer shall also be liable for any expenses, taxes, import and export duties and fees and other governmental charges incurred in the rendering of the Services, including attorney fees, Broker incurs in collecting its rates and charges. CUSTOMER SHALL ALSO BE RESPONSIBLE FOR ANY ADDITIONAL ACCESSORIAL CHARGES IMPOSED BY THE SERVICING MOTOR CARRIER WHICH WERE NOT ANTICIPATED BY BROKER AT THE TIME BROKER ARRANGED FOR SERVICES WITH SERVICING MOTOR CARRIER OR WHICH WERE NOT OTHERWISE INCLUDED IN THE RATE QUOTED BY BROKER. IF ANY INFORMATION PROVIDED BY CUSTOMER IS INACCURATE OR INCOMPLETE, CUSTOMER ACKNOWLEDGES AND AGREES THAT AGREED UPON RATES MAY, IN BROKER’S SOLE DISCRETION, BE REVISED TO REFLECT THE GOODS ACTUALLY TENDERED OR SERVICES RENDERED.
CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS BROKER, ITS AFFILIATED ENTITIES, AND EACH OF THEIR OFFICERS, MEMBERS, AND DIRECTORS FROM AND AGAINST, AND SHALL PAY AND REIMBURSE EACH OF THEM FOR, ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, FINES, JUDGMENTS, PENALTIES AND AMOUNTS (INCLUDING REASONABLE ATTORNEY FEES) ARISING FROM OR RELATED TO: (i) BREACH BY CUSTOMER OF THIS AGREEMENT; (ii) THE NEGLIGENCE OR OTHER WRONGFUL CONDUCT OF CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES; (iii) VIOLATION BY CUSTOMER, ITS AGENTS, CONTRACTORS OR EMPLOYEES OF ANY APPLICABLE LAWS, RULE OR REGULATION; OR (iv) CUSTOMER’S FAILURE TO PROVIDE, OR BROKER’S COMPLIANCE WITH OR RELIANCE ON, INSTRUCTIONS, DIRECTIONS, OR REQUEST OF CUSTOMER. THE FOREGOING NOTWITHSTANDING, CUSTOMER’S OBLIGATION TO HOLD HARMLESS, DEFEND, INDEMNIFY, PAY AND REIMBURSE SHALL NOT APPLY TO THE EXTENT ANY CLAIM IS CAUSED BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE PARTY OTHERWISE SEEKING THE PROTECTIONS OF THIS PARAGRAPH (EACH OF WHICH, WITH THE EXCEPTION OF BROKER, IS AN INTENDED THIRD PARTY BENEFICIARY OF THIS AGREEMENT).
Broker’s sole responsibility with respect to selection and retention of Servicing Motor Carriers is to make reasonable efforts to place Customer’s loads with responsible Servicing Motor Carriers, and that solely in the case of United States Servicing Motor Carriers are: (i) authorized to perform the services required by Customer; (ii) which such carriers do not hold an “unsatisfactory” or unfit safety rating from the U.S. Department of Transportation; and (iii) that possess all insurance coverages required by Applicable Law. Broker makes no express or implied warranties or guarantees concerning delivery time or the locating of a Servicing Motor Carrier to provide the transportation services requested by Customer.
Broker shall comply with all insurance and bonding requirements imposed upon it by law, including its obligation to maintain a surety bond or trust fund agreement, provided however, that such bonding and/or insurance requirements shall not be interpreted to supersede and/or substitute any insurance and/or bonding requirements that the Customer and/or Servicing Motor Carries shall maintain as a matter of legal requirements or reasonable commercial caution, for which Broker shall under no circumstance shall be responsible and for which liability Customer hereby explicitly releases Broker.
Customer acknowledges that Servicing Motor Carriers may limit their liability for cargo loss, damage or delay. Upon request from Customer, Broker will use reasonable commercial efforts to determine and communicate the Servicing Motor Carrier’s limitation on cargo loss and damage liability to Customer. If Customer wishes for Broker to arrange for the Servicing Motor Carrier to assume liability in excess of the otherwise applicable limitation, Customer must make such request to Broker by contacting your sales representative at the Broker to request an increased limit to liability at least seventy-two (72) hours prior to scheduled pick-up of the shipment. Upon receipt of such request, Broker will use reasonable efforts to source a Servicing Motor Carrier able to perform the services at the requested liability levels and if Broker is able to do so will issue a revised Quote to Customer setting forth additional charges applicable to Customer’s request for additional recovery and Customer agrees to pay such additional amounts. If Broker does not issue a Quote setting forth additional charges related to the request for the Servicing Motor Carrier to assume additional liability, then Customer acknowledges and agrees that the Servicing Motor Carrier’s default limitation of liability will apply.
The foregoing provisions notwithstanding, Customer acknowledges and agrees that Servicing Motor Carriers providing services within Mexico will not agree to assume excess liability above the otherwise applicable limitation, and any loss or damage occurring to cargo moving to, from or within Mexico will be subject to such limitations unless otherwise explicitly agreed to in writing by Broker.
It will be Customer’s responsibility to insure product in-transit. Broker may facilitate claims filing and processing with the Servicing Motor Carrier if Customer submits to Broker, within sixty (60) days of the date of delivery, a written claim, fully supported by all relevant documentation, including but not limited to the signed delivery receipt, listing the nature and cause of the claim for cargo damage. Broker may, in its sole discretion and without liability to Customer, discontinue pursuit of claims with the Servicing Motor Carrier if such claim is not resolved within sixty (60) days of receipt by Broker or if Customer, in Broker’s sole discretion, fails to cooperate with Broker in filing of claims with the Servicing Motor Carrier. Broker in no event shall be responsible for the outcome of a claim with the Servicing Motor Carrier or for the failure of a Servicing Motor Carrier to perform any of its obligations derived from such claim.
Customer acknowledges and agrees that failure or alleged failure by the Servicing Motor Carrier to comply with shipment handling instructions, or a broken trailer seal, shall not, in and of itself, result in any presumption that cargo has been adulterated, contaminated, or otherwise rendered unfit for its intended purpose.
BROKER SHALL HAVE NO LIABILITY FOR CARGO LOSS, DAMAGE, OR SHORTAGE EXCEPT TO THE EXTENT SUCH CLAIMS ARE CAUSED BY BROKER’S DOCUMENTED NEGLIGENT ACTS OR OMISSIONS, IN WHICH CASE, BROKER’S LIABILITY SHALL BE LIMITED TO THE CHARGES ASSESSED BY BROKER AND PAID BY CUSTOMER WITH RESPECT TO THE GOODS AT ISSUE.
Customer is responsible for filing a claim with Broker alleging Broker’s liability for cargo loss and damage within sixty (60) days of the date of delivery of the cargo in question (or, if none, within sixty (60) days of the date cargo should have been delivered). Failure to do so will result in an absolute bar to any such claim and will relieve Broker of any and all liability with respect thereto. In no event will Broker have any liability arising from or related to the Servicing Motor Carrier’s refusal to accept full value liability or the Servicing Motor Carrier otherwise limiting or disclaiming its liability for cargo loss and damage.
Broker shall be under no obligation to arrange, and Servicing Motor Carrier shall be under no obligation to provide, service in accordance with any set pick-up or delivery schedule; Broker’s sole obligation is to ensure Servicing Motor Carriers provide services with reasonable dispatch.
Any lawsuit arising from such claim must be commenced within eighteen (18) months of denial of all or any part of such claim. Customer acknowledges and agrees that the sole liability of Broker with respect to loss, damage or delay to cargo shall be as set forth in this provision and Customer warrants and represents that if it is not the owner of such cargo, Customer holds authority from such owner to bind the owner to the provisions of this Agreement.
Shipments tendered hereunder may be accepted by the Servicing Motor Carrier on a bill of lading or similar transportation document setting forth the respective legal rights and obligations of Customer and the Servicing Motor Carrier. In no event shall the terms or conditions of any such bill of lading or other document used by Customer and the Servicing Motor Carrier apply to Broker’s Services or otherwise be binding on Broker. Upon request of Customer, Broker shall request that Servicing Motor Carriers obtain a delivery receipt from the consignee, showing the products delivered, the condition of the shipment and the date and time of such delivery. Customer waives access to Broker’s records pursuant to 49 C.F.R. Part 371.
Broker agrees to notify Customer of any accident or other event of which Broker is apprised and which prevents the motor carrier from making a timely delivery.
BROKER HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SHIPPING SERVICES PROVIDED TO CUSTOMER BY ANY SERVICING MOTOR CARRIER. BROKER SHALL NOT BE DEEMED TO BE AN AGENT OR A PARTNER OF ANY SERVICING MOTOR CARRIER OR CUSTOMER FOR ANY REASON.
IN NO EVENT SHALL BROKER (OR ITS SUPPLIERS) BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR CUSTOMER’s USE OF, OR INABILITY TO USE, THE SERVICE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR BUSINESS INTERRUPTION, EVEN IF BROKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BROKER’S (AND ITS SUPPLIERS’) LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS CUSTOMER HAS PAID BROKER IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
Customer consents to receive communications from Broker in an electronic form and agree that all terms and conditions, agreements, notices, disclosures, and other communications that Broker provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing and expressly agrees to be bound by all transactions with Broker conducted through electronic means without the need of physical signatures. The foregoing does not affect Customer’s non-waivable rights.
Neither party shall assign this Agreement or any rights hereunder without the prior written consent of the other party, except that (i) Broker may assign this Agreement to any of its parent, subsidiary, or related companies, (including, but not limited to, Nuvocargo Inc), or to any surviving company in a merger or acquisition; and (ii) Broker may assign or otherwise encumber any and all collection rights hereunder in favor of any third party, including financial institutions. Any assignment made pursuant to this paragraph shall be binding upon all assigns, heirs, and successors of the assigning party. Customer acknowledges and agrees that Broker is authorized to subcontract provision of the Services to third parties on any terms acceptable to Broker in Broker’s sole discretion.
Except for regular business communications, which may be transmitted through procedures established by agreement or acquiescence, all notices made hereunder shall be provided in writing and delivered by certified mail, or overnight courier with tracking capabilities. Notices transmitted by certified mail or overnight courier shall be deemed received as of the date and time signed for by recipient. If to Customer, notices shall be addressed to the address provided by Customer when registering for the Service, as updated by Customer from time to time. If to Broker, notice shall be addressed as set forth below:
Attn: Deepak Chuugani
154 Grand St, Level 5
New York, NY 10013
Neither party, nor any Servicing Motor Carrier, shall be liable for any delay in the performance of their respective obligations under this Agreement resulting from any force majeure, including, but not limited to, acts of God, acts of government or other civil or military authorities, acts of terror, war, riots, or any other event of like kind beyond the reasonable control of the party. In the event of a force majeure, the affected party shall promptly notify the other party in writing, stating the reasons for the inability to comply with the provisions of this Agreement, and the expected duration of the force majeure.
This Agreement and the Website Terms and Conditions separately executed by the parties constitute the entire agreement and understanding between the parties with respect to the Services and supersede any and all prior agreements and understanding, either oral or written. In the event of a conflict between this Agreement and the Website Terms and Conditions, this Agreement shall govern. This Agreement may not be amended, changed, altered, or otherwise modified except in writing signed by both parties.
In the event either party incurs reasonable attorney fees, costs, or expenses in enforcing any of the provisions of this Agreement, or in exercising any right or remedy arising out of any breach of this Agreement by the other party, the prevailing party shall be entitled to receive reasonable attorney fees, costs, and expenses from the other party.
If any provision of this Agreement is held to be invalid under the laws of the Federal government, any State, Province, Territory, Municipality or any other jurisdiction having authority, such provision will be deemed to have no effect in such jurisdiction, but all other provisions of this Agreement shall remain in full force and effect.
The parties have entered into this Agreement pursuant to 49 U.S.C. § 14101(b) for the purpose of providing and receiving transportation services under the rates and conditions set forth in this Agreement. The Parties expressly waive any and all rights and remedies under Part B of Subtitle IV to Title 49 of the U.S. Code, to the extent that such rights or remedies conflict with this Agreement. Customer hereby waives its right to obtain copies of Broker’s records as provided for under 49 C.F.R. Part 371.
Customer and Broker each warrants to the other and agrees that neither it nor any of its officers, directors, employees or agents nor any other person or entity acting on its behalf shall take any action in connection with the transportation activities described herein which would constitute a violation of the U.S. Foreign Corrupt Practices Act or the corresponding Mexican anti-corruption laws (Ley General del Sistema Nacional Anticorrupción y sus disposiciones complementarias). In particular, neither Customer nor Broker, nor any of their respective officers, directors, employees or agents nor any other person or entity acting on their behalf shall request, induce, make, offer, authorize or promise to make any payment or transfer of anything of value, directly or indirectly, (i) to any governmental official or employee (including employees of government-owned or government-controlled corporations, agencies or bodies), (ii) any official or employee of a public international organization, (iii) to any political party, official of a political party or candidate, or (iv) to any third party knowing, believing, or suspecting that such third party will give or transfer the payment or thing of value, or any portion thereof, to any of the foregoing persons in order to obtain or retain business or for any other improper purpose.
This Agreement shall be deemed to have been drawn in accordance with the statutes and laws of the state of New York and in the event of any disagreement or dispute regarding services subject to this Agreement, to the extent not otherwise governed by U.S. federal law, the laws of the state of New York shall apply and suit must be brought in courts serving New York County, New York as each party specifically submits to the exclusive personal jurisdiction of such courts for disputes involving or arising from this Agreement or services rendered (or not received) pursuant to this Agreement. The parties hereby submit to the exclusive jurisdiction of, and venue in, such courts and waive any and all challenges to such venue or jurisdiction. Unless otherwise specified, the word “dollar” and the “$” sign used herein refer to United States currency, and all amounts to be advanced, paid or calculated hereunder are to be advanced, paid or calculated in United States currency. This Agreement is drawn in English. In the event it is interpreted to any other language, any such interpretation shall be for the convenience of the parties only. The English language version is the official agreed upon version and will govern any conflict with any version in any other language.
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