Terms and Conditions

Y  

The entire agreement between RICK’S OG, Inc. (“Broker”) and the enrolled customer, shipper and/or consignee, as the case may be (“Customer”), consists of: (i) the terms on any quote prepared by Broker for Customer, (ii) these Terms and Conditions of Transportation Services, and (iii) any additional terms and conditions proposed by Broker in writing and signed by Customer ((i) through (iii) collectively, the “Agreement”).  The Agreement shall become binding when accepted by Customer either by acknowledgment or performance by Broker.  These Terms and Conditions of Transportation Services shall apply to all shipments scheduled by Customer and may be amended from time to time by Broker, in its sole discretion.  Any terms and conditions proposed by Customer which are additional to or inconsistent with the terms and conditions contained in the Agreement shall be void, unless specifically agreed to by Broker in writing, signed by Broker’s duly authorized representative.

The Broker is a (i) freight broker for purposes of US domestic ground transportation, (ii) freight forwarder and/or indirect air carrier for purposes of air transportation, and (iii) freight forwarder for purposes of ocean transportation.  Broker a IS NOT a freight carrier, except for those instances in which Broker expressly agrees in writing to operate as a non-vessel operating common carrier (NVOCC). The Broker reserves the right, in its sole discretion, to refuse to broker/schedule any shipment at any time.

“Goods” refers to cargo transported hereunder, including all pieces which are tendered to, and accepted by, Broker on a single bill of lading.

1. Transportation Documents

Each shipment under this Agreement shall be evidenced by one or more transportation documents, which may include, but not be limited to, bills of lading, air waybills, ocean bills of lading, warehouse receipts manifests or any other documents purporting to control the custody and/or movement of the Goods (collectively, the “Transportation Documents”), showing the kind, quantity and condition of the Goods received and delivered by Broker or its subcontractors at the loading and unloading points, respectively.  In the case of a conflict with any term or condition of this Agreement, the Transportation Document or the carrier’s General Rules Tariff, the carrier’s General Rules Tariffs shall take precedence and govern, then the Transportation Document, then this Agreement – in that order of priority.  If a shipment originated outside the United States, the contract of carriage is with the Broker’s subsidiary, branch, or independent contractor who originally accepts the shipment.

For purposes of air and ocean transportation, Customer is required to use Broker’s system-generated Transportation Document.  All such Transportation Documents are STRAIGHT/NON-NEGOTIABLE, have been prepared by Broker on behalf of the Customer, and shall therefore be deemed, conclusively, to have been prepared by the Customer and to bind Customer.  Any unauthorized alteration or use of a Transportation Document or tendering of shipments to any carrier other than that designated by the Broker, or the use of any Transportation Document not authorized or issued by the Broker shall VOID the Broker’s obligations to make any payments relating to the associated shipment and VOID all rate quotes.  If Customer does not complete all the documents required for carriage, or if the documents which Customer submits are not appropriate for the services, pick up or destination requested, the Customer hereby instructs the Broker, where permitted by law, to complete, correct and/or replace the documents for Customer at Customer’s expense; provided, however, the Broker is not obligated to do so.  If a substitute form of Transportation Document is needed to complete delivery of a shipment, and the Broker completes that document, the terms of that Transportation Document will govern. The Broker is not liable to the Customer or to any other person for any actions taken on behalf of the Customer under this provision.

2. Customer Warranties

Customer covenants, represents and warrants, as applicable, that (i) Customer is the legally documented owner of all Goods tendered to Broker, and/or is authorized to cause such Goods to be stored and otherwise controlled by Broker as provided in the applicable Transportation Document; (ii) Customer will comply with all applicable laws, rules, and regulations including, but not limited to, customs laws, import and export laws, dangerous or hazardous materials laws/rules/regulations, and governmental regulation of any country to, from, through or over which the shipment may be carried; (iii) Customer will provide complete, accurate and timely information regarding each shipment; (iv) Customer will furnish such information and complete and attach to the applicable Transportation Document such documents as are necessary to legally complete the shipment; (v) all items to be shipped will be completely and accurately marked to enable identification of the contents without opening any shipping or storage containers; (vi) Customer will make every effort to accurately measure the dimensions and weights of all items and understands that Broker’s rate depends upon the accuracy of this information; and (vii) Customer’s authorized representative(s) shall be identified to Broker’s agent or coordinator and shall be available at all times at the point of origination to sign, and shall sign, all documents evidencing pick-up of the items to be shipped by Broker.

The Broker assumes no liability to the Customer or to any other person for any loss or expense due to the failure of the Customer to comply with this provision. Any individual or entity acting on behalf of the Customer in scheduling shipments warrants that he/she/it has the right to act on behalf of the Customer and the right to legally bind Customer.  Customer understands and agrees that, unless otherwise expressly agreed to by Broker in the Agreement, Broker shall not acquire title to or assume risk of loss for any of the Goods on behalf of Customer, and shall not, in the course of providing the services in accordance with the Agreement, acquire title to or assume risk of loss for, or be deemed to have acquired title to or assumed risk of loss for, the Customer’s Goods.  Customer indemnifies, defends, and holds Broker harmless against any liability, loss, damage, cost, expense, including attorneys’ fees, claim, or penalty whatsoever arising from Broker acting in accordance with Customer’s instructions, from any breach by  Customer  of  any  warranty  contained  in  this  Agreement,  or  from  the  negligence,  gross negligence, or willful misconduct of Customer or its employees or agents.

3. Payment

All charges are payable in US Dollars, due and payable NET fifteen (15) days from the date of invoice by Broker, provided Customer’s credit application is approved.  Alternative terms may be required if the credit application is incomplete or Customer’s credit score does not meet Broker’s standards.  Any payment which is past due shall accrue interest daily at the rate of 1.5% per month on the outstanding balance due, or the highest rate of interest permitted by applicable law, whichever is less.  All funds received by the Broker will be applied to the oldest (based on pick-up date) invoiced Transportation Document that is outstanding.  Overpayments do not accrue interest and are subject to the Laws of the Commonwealth of Pennsylvania.  In the event the Broker retains an attorney or collection agency to collect unpaid charges or for the enforcement of the Agreement, all unpaid charges will be subject to a late payment penalty of 33%, and Customer shall also be liable for all attorneys’ and collection agency fees incurred, together with all related costs and expenses.

Notwithstanding the foregoing, Customer’s payment terms are always subject to credit approval.  Broker may perform a credit check based on the information provided at the time of enrollment by the Customer.  The amount of credit, if any, granted to the Customer is within Broker’s sole and absolute discretion.  When paying by credit card or electronic funds, the Customer agrees it will be responsible for all charges payable, including any adjustments, on account of such Customer’s shipment, plus a 3.5% credit card transaction fee.  These charges and adjustments, if any, will be automatically debited to the Customer’s credit card or bank account.

All shippers, consignors, consignees, third party freight forwarders and third party freight brokers are jointly and severally liable for the freight charges relating to a shipment under the Agreement.

The Customer shall be liable, jointly and severally, for all charges payable on account of such Customer’s shipment, including but not limited to transportation, fuel and other applicable accessorial charges, including all adjustments issued by the carrier(s) after the shipment, and all duties, customs assessments, governmental penalties and fines, taxes, and Broker’s attorney fees and legal costs allocable to this shipment and/or all disputes related thereto. The Broker shall have a lien on the shipment for all sums due it relating to this shipment or any other amounts owed by Customer. The Broker reserves the right to amend or adjust the original quoted amount or re-invoice the Customer if the original quoted amount was based upon incorrect information provided at the time of the original quote or if additional services by the carrier were required or otherwise authorized by the Customer to perform the pickup, transportation and delivery functions therein.  Customer is permitted thirty (30) business days from the date of the invoice to dispute any invoiced charges.  If the Broker does not receive a dispute within the allowable thirty (30) business days, the disputed item will be denied by the Broker.

4. Claims

All claims for loss, damage, delay or non-delivery must be made within one hundred twenty (120) days of the shipping date, or such claims shall be deemed to be waived.  Original shipping carton and contents must be retained by consignee for inspection.  Acceptance of Goods by recipient without noting damage on the delivery notice shall be conclusive evidence that such Goods were delivered in good condition and without damage.

The filing of a claim does not relieve the responsible party for payment of freight charges.  Freight payment is necessary in order for a carrier to process a claim.  All freight cargo claims should be submitted immediately to the Broker to help ensure timely resolution. The Broker will attempt to assist in the resolution of freight claims, but has no responsibility or liability therefore.  No claim will be reviewed until all shipping and related charges have been paid to Broker. All packaging and containers must be made available for inspection by Broker.  Insurance claim payments, minus $100.00 USD deductible, will be made in U.S. dollars.  Where Broker files damage claim with carrier on behalf of Customer and receives recovery funds, the Broker has a lien on such recovery amounts and reserves the right to apply recovery amounts to open past due invoices on account.  This includes recovery amounts received from carrier for freight charges and/or product damage claim amounts.

All claims for overcharge shall be deemed waived if not presented to Broker within one hundred twenty (120) days of the original invoice date.  Notwithstanding the foregoing, if an account is more than sixty (60) days past due, Broker may apply overpayments, or other credits owed to Customer, against the oldest dated invoices.

All claims are to be submitted in writing by overnight or certified mail to the following physical and/or email address: RICK’S OG INC 325 W Windsor Rd, Glendale, CA 91204

5. Limitations of Liability

Subject to the limitations of liability contained in the Transportation Document and the carrier’s General Rules Tariff, with respect to domestic full truckload shipments, Broker shall not be liable for any loss of or damage to any shipment, including as a result of the negligence or fault of Broker. In the event of any liability for loss of or damage to any such shipment, Broker’s liability per shipment shall be limited to the lesser of (i) the actual value of the goods lost or damaged, (ii) $500 per container load for the Goods involved, less any salvage value, or (iii) $100,000 per occurrence.

Subject to the limitations of liability contained in the Transportation Document and the carrier’s General Rules Tariff, in connection with domestic air and less-than-truckload shipments, Broker shall not be liable for any loss, damage, expense or delay to the Goods for any reason, including as a result of the negligence or fault of Broker, for any amount in excess of $0.50 per lb. of the Goods in question, $50.00 per shipment, or the invoice value of the Goods in question, whichever is less.  Partial loss or damage shall be prorated on this basis.

With respect to international air shipments, Broker’s liability per shipment shall be limited in accordance with any applicable international carriage of goods convention. In the event that no international convention is applicable, Broker’s liability per international air shipment shall be limited to $20.00 per KG.

With respect to maritime shipments, as to any portion of the carriage that is governed by the United States Carriage of Goods by Sea Act, Broker’s liability shall be limited to $500 per packing unit, or for goods not shipped in packages, per customary freight unit. In all other cases involving maritime shipments, Broker’s liability per shipment shall be limited in accordance with any applicable convention, including the rules set forth in the Hague-Visby Rules as amended by the Brussels Protocol of 1968, or the amount set forth in the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (“Rotterdam Rules”), signed September 23, 2009, at such time as the Rotterdam Rules come into effect. In the event no convention is applicable, Broker’s liability shall be limited to $500 per container.

The individual carrier’s governing General Rules Tariff determines the standard liability cargo insurance coverage offered by all carriers.  If the shipment contains freight with a predetermined exception value, as determined by the selected carrier, the maximum exception liability will override the otherwise standard liability coverage.

The Broker is not liable for any loss, damage, mis-delivery or non-delivery caused by the act, default or omission of the carrier. The Broker is not liable for any loss, mis-delivery or non-delivery caused by the act, default or omission of the Customer or any other party who claims interest in the shipment, or caused by the nature of the shipment or any defect thereof.  The Broker is not liable for losses, mis-delivery or non-delivery caused by violation(s) by the Customer of any of the provisions of the Transportation Document or of the carrier’s General Rules Tariff including, but not limited to, improper or insufficient packing, securing, marking or addressing, or of failure to observe any of the rules relating to shipments not acceptable for transportation or shipments acceptable only under certain conditions.  The Broker is not liable for losses, mis-delivery or non-delivery caused by events of Force Majeure (defined in Section 12 below). The Broker is not liable for failure to comply with delivery or other instructions from the Customer or for the acts or omissions of any person other than employees of the Broker.

THE BROKER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THE SERVICES PERFORMED HEREUNDER. THE BROKER CANNOT GUARANTEE DELIVERY BY ANY SPECIFIC TIME OR DATE. IN ANY EVENT, THE BROKER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR INCOME, WHETHER OR NOT THE BROKER HAD KNOWLEDGE THAT SUCH DAMAGES MIGHT BE INCURRED.

Customer expressly waives all rights and remedies it may have as to Broker and its subcontractor motor carriers under 49 U.S.C. Subtitle IV, Part B (excluding §§ 13703, 13706, 14101 and 14103) to the full extent permitted by 49 U.S.C § 14101(b)(1).

6. Quotations and Rates

Quotations by Broker are for informational purposes only and are subject to change without notice. No quotation binds Broker unless Broker agrees to handle or transport the goods at specific rates and payment terms.

Rate acceptance is required in writing prior to Goods booking, which rate is subject to change by carrier upon its receipt of the Goods.  Domestic less-than-truckload (“LTL”) rates are based on the freight class as determined by the NMFC (National Motor Freight Classification).  All displayed transit times for surface transportation are estimates only and do not include day of pickup, and surface transportation pickup dates are not guaranteed.  Surface transportation rates are based on road regal weight and inclusive of fuel surcharge unless otherwise specified, which fuel surcharge is subject to fluctuation.  Overweight containers are subject to additional cost.  Rates are subject to (i) chassis usage surcharge, chassis split, lift, and/or repossession charge, if applicable, and (ii) any GRI, PSS, port congestion, BAF and other accessorial charges or increases as per carrier(s) without notice at time of shipment.  All guaranteed LTL services are governed exclusively by the carrier’s General Rules Tariff.

The compensation of Broker for its services and advances shall be included with and is in addition to the rates and charges of all third parties, including, but not limited to Custom formalities and examination fees, to handle, transport, load, unload, store, clear, enter, deliver, distribute or otherwise deal with the Goods, and shall be exclusive of any brokerage, commissions, dividends or other revenue received by Broker from insurers or other persons.  A three percent (3%) advance cash outlay is applicable if Broker pays any charges on behalf of Customer.

7. Cargo Insurance

No cargo insurance will be purchased or held by Broker unless Broker has agreed otherwise in writing with Customer. Customer, at its expense, may purchase a shipper’s interest insurance policy, in which event Broker will act solely as a representative for Customer, assisting the Customer with entering a separate contract for insurance between Customer and the insurance carrier.

Through the Customer’s purchase of a shipper’s interest insurance policy, which would be underwritten by National Union Fire Insurance Company of Pittsburgh, PA, the enrolled Customer will receive an insurance certificate denoting insurance equal to the declared value amount entered covering Goods in transit subject to the terms and conditions contained therein.

FAILURE TO PURCHASE CARGO INSURANCE WILL RESULT IN CUSTOMER BEING LIMITED TO RECOVERY PURSUANT TO THE TERMS OF CARRIER’S GENERAL RULES TARIFF.

Upon completion of the purchasing and approval process, including cargo insurance coverage acceptance and final shipment confirmation, a certificate of insurance will be issued to the indicated certificate holder by the end of the next business day.

THE BROKER IS NOT AN INSURANCE COMPANY AND DOES NOT OFFER OR PROVIDE INSURANCE. Further the Broker has no responsibility, liability, or involvement in the issuance of insurance, the denial of insurance, or in the payment of claims. In the event of cargo loss or damage, the certificate holder is to contact the claim agent noted on the certificate of insurance immediately. If the loss or damage is apparent, the consignee must note such loss or damage information on the Transportation Document/delivery receipt.  If the loss or damage is not apparent (concealed), the certificate holder must contact the claims agent noted on the certificate within five (5) calendar days after taking delivery.  Should any such insurance carrier dispute liability or refuse to settle a claim for any reason whatsoever, Customer agrees it will have no recourse against Broker.

8. Right to Reject Requests for Shipping Services

Broker reserves the right to reject any request for shipping in its sole discretion. Without limitation, any shipment containing any item that is considered a restricted article or hazardous material by the Department of Transportation (DOT), International Air Transport Association (IATA), or the International Civil Aviation Broker (ICAO), will not be shipped by Broker. Shipments containing items that cannot be transported legally or safely, include, but are not limited to:

• Animals
• Plants
• Chemicals
• Perishables
• Currency
• Precious Metals
• Explosives
• Precious Stones
• Liquor
• Negotiable items in Bearer Form

9. Obligations of Broker

Broker agrees to provide the freight brokering services hereunder on a non-exclusive basis, in a good and workmanlike manner.  Broker represents and warrants that it holds all necessary licenses, permits and/or other authorizations necessary to provide the freight brokering services described herein, and is duly qualified and authorized to perform its obligations under the Agreement.

Broker will require that any carriers engaged by Broker to transport Goods hereunder will (i) have in place all insurance policies required under applicable law, and (ii) remain duly qualified and authorized by license, permit or other authorization issued by the applicable governmental authority to lawfully transport Goods as described in this Agreement.

Broker will comply with all applicable laws and regulations pertaining to the performance of the freight forwarding services.  Broker will provide Customer with activity reports and other reports as reasonably requested by Customer from time to time.

10. Independent Contractor

Broker shall be an independent contractor with respect to Customer, and nothing herein contained shall be construed to be inconsistent with such relationship or status.  Broker’s agents and employees shall under no circumstances be deemed to be agents, employees or representatives of Customer.  Customer shall have no control and direction of the persons providing services hereunder.  Similarly, in no event shall any person engaged or employed by Customer be considered an employee or agent of Broker.

Broker shall engage and/or subcontract with such entities and/or individuals as it may deem necessary or appropriate in connection herewith, it being understood and agreed that such entities or individuals shall be subcontractors of Broker only and shall be subject to discipline and control solely and exclusively by Broker.

11. Carrier’s and Warehouseman’s Lien

Customer acknowledges that Broker and its subcontractors have both a carrier’s and warehouseman’s general lien on all Goods handled pursuant to any Transportation Document.  This lien may be enforced by Broker and its subcontractors at any time at either a public or private sale with or without a judicial hearing.  Any notice required to be given of a sale or other disposition made at least ten (10) days before a proposed action constitutes fair and reasonable notice.  Any surplus from the sale or other disposition, after deduction for all sums owed to Broker, shall be transmitted to Customer, and Customer shall be liable for any deficiency.  Customer also grants Broker a security interest in the Goods being handled under any Transportation Document until Customer has fully satisfied all liabilities, whenever occurring, owed to Broker.  Broker has the right to withhold delivery or release of Goods if Customer is in breach of any indebtedness or obligation to Broker, even if not related to such Goods.  If any such indebtedness or obligation is unsatisfied, Broker may, in addition to all other rights and remedies under other agreements and/or applicable Law, exercise all rights and remedies of a secured party under the Uniform Commercial Code, including, but not limited to the filing of financing statements covering any such Goods without Customer’s signature.

12. Force Majeure

Any delay or failure of performance of Broker under these Terms and Conditions of Transportation Services shall not constitute a breach or default hereof or of any Transportation Document, or give rise to any claims for damages, if and to the extent that such delay or failure is caused by an occurrence beyond the reasonable control of the Broker, including, but not limited to, acts of God, acts of governmental authorities, public enemies, acts or omissions of Customs or quarantine officials, war, riots, rebellions, strikes, sabotage, fire, explosions, accidents, floods, strikes, lockouts, labor disputes, weather conditions, mechanical delay or failure of aircraft or other equipment, the discovery of materially different site conditions, or changes in laws, regulations, or ordinances.

13. Non-Exclusivity

Customer understands and agrees that this Agreement is non-exclusive and that Broker shall be free to provide similar services to companies other than Customer and that Customer shall be free to utilize logistics services from companies other than Broker provided that these actions do not interfere with the parties’ ability to perform under this Agreement.

14. Miscellaneous

This Agreement is binding and for the benefit of both Broker and Customer and their respective representatives, successors and permitted assigns. Neither party may assign this Agreement without the written consent of the other party.  Either party’s failure to strictly enforce any provision of this Agreement will not be construed as a waiver of that provision or as excusing the other party from future performance. The Agreement completely and exclusively states the agreement of the Broker and Customer regarding the subject matter hereof and supersedes all prior negotiations, representations or agreements with respect to the subject matter hereof, written or oral, and may be amended only by written instruments signed by the Broker and Customer.  If any part of these Terms and Conditions of Transportation Services is found unenforceable, it will not affect the validity or enforceability of any other provision of these Terms and Conditions of Transportation Services.