THESE CUSTOMER TERMS AND CONDITIONS (this “Agreement”) is entered into by and between Sheltered International, LLC (“Sheltered”), and its customer (“Customer”).
1. Credit. Customer is subject to credit approval. Sheltered 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 at the sole discretion of Sheltered and any credit granted to the Customer may be revoked at any time at the sole discretion of Sheltered.
2. Services. Sheltered shall provide Customer the services described in each quote (the “Services”) provided by Sheltered and agreed to by Customer (each, a “Quote”). Each Quote shall be subject to the terms of this Agreement. Sheltered 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 Services.
- a. Compliance with Applicable Law. Customer agrees to abide by all applicable laws, rules, and regulations including but not limited to customs laws, import and export laws and governmental regulation of any country to, from, through or over which the shipment may be carried. Customer agrees to furnish such information and complete and attach to any bill of lading such documents as are necessary to comply with any laws, rules and regulations. Sheltered assumes no liability to Customer or to any other person for any loss or expense due to the failure of the Customer to comply with applicable law. Term and Termination. This Agreement will continue until the expiration or termination of the last-surviving Quote. Either party will have the right to terminate this Agreement or any Quote if the other party materially breaches this Agreement or any Quote and fails to cure such breach within thirty (30) days after receipt of written notice from the nonbreaching party. Sheltered may terminate this Agreement or any Quote within five (5) days after written notice to Customer. Within thirty (30) days after such expiration or termination, each party shall return or destroy all Confidential Information of the other party in its possession that it does not have a continuing right to use pursuant to the express terms of this Agreement.
- b. Customer Liability for Charges. Customer is liable for all charges payable because of Customer’s shipment, including but not limited to transportation, fuel storage, per diem, general average, and other charges, including all adjustments issued by the carrier(s) after the shipment, and all duties, customs assessments, governmental penalties and fines, taxes, and Sheltered ‘s attorney fees and legal costs allocable to the shipment and all disputes related thereto. Unless otherwise agreed, brokers scheduling shipments for Customers shall be jointly and severally liable for all charges payable because of Customer’s shipment. Sheltered may, but shall have no obligation to, advance money on behalf of the Customer. Customer shall reimburse Sheltered for any sum advanced. Customer acknowledges that as the importer of record, the payment of duties, both regular and additional, under 19. C.F.R. Section 141.1(b) are the personal debt of the importer that can be discharged only by payment in full of all duties legally accruing unless relieved by law or regulation. If the Customer is not a natural person, the director, manager, officer, employee, or agent executing or accepting this Agreement on behalf of the Customer does hereby personally guaranty all amounts owed by the Customer to Sheltered.
- c. Lien. Sheltered has a general lien on any and all property (and documents relating thereto) now or hereafter in Sheltered’s possession, custody or control or en route as security for all existing and future indebtedness and obligations of Customer to Sheltered. This lien is in addition to any other rights and remedies Sheltered may have under other agreements or applicable law, and shall survive delivery or release of any property. Sheltered has the right to withhold delivery or release of any property if Customer is in breach of any indebtedness or obligation to Sheltered, even if not related to such property. If any such indebtedness or obligation is unsatisfied, Sheltered may, in addition to all other rights and remedies under other agreements and/or applicable law, exercise all of the rights and remedies of a secured party under the Uniform Commercial Code. Customer acknowledges that 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 Sheltered, shall be transmitted to Customer, and Customer shall be liable for any deficiency.
- d. Insurance; Damage to Freight. Unless Sheltered otherwise agrees, Sheltered has no obligation to procure insurance. If Sheltered agrees to procure insurance, Sheltered has the right to select the insurance companies and underwriters. Insurance coverage is subject to the insurance policy’s terms and conditions. In the case of a cargo claim the Customer shall have recourse against the insurer only, and Customer will hold Sheltered harmless of any cargo claims. Customer is responsible for all insurance premiums, fees, and taxes associated with procuring coverage, all of which are fully earned upon payment being remitted to Shelter International.If Customer has a claim on damaged or lost freight, both the carrier and Sheltered should be notified within 3 days. The individual carrier’s governing General Rules Tariff determines the standard liability cargo insurance coverage offered by the carrier. The filing of a claim does not relieve Customer of its payment obligation to Sheltered. Customer payment to Sheltered is required for a claim to process.
- e. Bills of Lading. All bills of lading are NON-NEGOTIABLE. Whether such bills of lading have been prepared by Customer or by Sheltered on behalf of the Customer, bills of lading shall be deemed, conclusively, to have been prepared by the Customer. Any unauthorized alteration or use of any bill of lading or tendering of shipments to any carrier other than that designated by Sheltered, or the use of any bill of lading not authorized or issued by Sheltered shall VOID Sheltered’s obligations to make any payments relating to the shipment and VOID all rate quotes.
- f. Rates. LTL rates are based on the freight class as determined by the NMFC (National Motor Freight Classification) and are weight based. TL rates are based on Dock Door Pickup/Dock Door Delivery and Shipper Load/Consignee Unload and are state to state and mileage based. Additional charges may apply, including but not limited to, Tractor Detention, Trailer Detention, and Driver Assistance.A $100.00 charge may be assessed for all LTL and Air shipments cancelled less than 6 hours prior to the scheduled day and time of pickup. A $330.00 charge may be assessed for all TL or FCL shipments cancelled less than 6 hours prior to the scheduled day and time of pickup. Air Freight rates are based on the greater of actual or dimensional weight. If an Air Freight shipment contains oversize dimensions, additional charges and transit days may apply. Truck rates based on state to state/mileage, weight (actual or density) and commodity/product type. Flatbed rates are based on equipment type, state to state/mileage and weight. If a flatbed shipment contains oversize freight, additional charges and transit days may apply.Shipments sent prior to document approval are subject to a expedited processing fee of $200. Customer is responsible for any additional storage or shipping costs incurred by Sheltered if Customer fails to provide the following documents at least two (2) business days prior to the shipments departure from origin: consignee and consignee’s broker contact information, if applicable, a bill of lading, commercial invoice, packing list, ISF forms, and any other documentation required by Sheltered. Customs brokerage does not include duties, taxes, bonds, or other fees from customs unless specifically noted. If other government agency (OGA) filing is required a fee of $100 per OGA may be applied. If a specific carrier is mentioned on quote, Sheltered has the right to change carrier and routing without notification as long as the there is no change in cost to Customer. All displayed transit times are estimates only and do not include day of pickup. Pickup dates are not guaranteed.
- g. Fees. Customer shall pay the fees as set forth in each invoice; provided, however, that all invoices shall be due and payable in full no later than thirty (30) days from the date of the invoice. Fees may not be withheld or offset for any reason. Customer waives any right to dispute the charges on the invoice, unless Customer provides Sheltered written notice describing the disputed amount within fifteen (15) business of the invoice. Partial payments shall not be construed as acceptance of payment in full. Fees are exclusive of all taxes, including without limitation, sales, use, or other taxes or levies. Past-due invoices are subject to a service charge, calculated on the outstanding balance, at the lesser of (i) the rate of 1.5% per month or (ii) the highest legal rate authorized by applicable law. If invoices remain past due, future services may be suspended or declined, and the Customer’s account may be referred for collection. Customer agrees to pay all costs including reasonable collection costs, attorney’s fees and expenses related to the enforcement of Customer’s obligations hereunder. Customer is responsible for all bank fees and other charges incurred on account of the payment method used by Customer. If such fees or charges are incurred by Sheltered, these will be automatically debited to the Customer’s credit card or bank account.
3. Confidential Information. Each party acknowledges that it will have access to certain confidential and proprietary information of the other party, including the terms and conditions of this Agreement (“Confidential Information”). Neither party shall use in any way, except as expressly permitted by this Agreement, nor disclose to any third party except as may be required by law, any of the other party’s Confidential Information. Each party shall take reasonable precautions to protect the confidentiality of the other party’s Confidential Information. Confidential Information does not include information that (i) is known to the recipient of the information before receipt from the disclosing party; (ii) publicly available through no fault of recipient; (iii) rightly received by recipient from a third party without a duty of confidentiality; (iv) disclosed by disclosing party to a third party without a duty of confidentiality on the third party; (v) independently developed by recipient without breach of this or any other confidentiality agreement; or (vi) disclosed by recipient after prior written approval from the disclosing party.
4. Hazardous Materials and Batteries. Customer shall comply with all applicable laws and regulations relating to the transportation of hazardous materials which includes any batteries. Customer is obligated to inform Sheltered immediately if any shipments constitute hazardous materials. Customer shall defend, indemnify and hold Sheltered harmless from any penalties or liability of any kind, including attorneys’ fees, arising from Customer’s failure to comply with applicable hazardous materials laws and regulations.
5. DISCLAIMER. SHELTERED HEREBY DISCLAIMS, ALL WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FURTHER, SHELTERED DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR THAT DELIVERIES WILL BE MADE AT ANY SPECIFIC TIME OR DATE.
6. Limitations of Liability. SHELTERED WILL NOT BE LIABLE TO CUSTOMER FOR
ANY LOST PROFITS, INCIDENTIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OF CUSTOMER’S BUSINESS, EVEN IF SHELTERED IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. SHELTERED’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL FEES PAID BY CUSTOMER TO SHELTERED FOR THE SHIPMENT IN QUESTION.
Without limiting the foregoing, Sheltered is not liable to Customer or any third party who claims interest in the shipment for any loss, late delivery or non-delivery caused by the action, default or omission of any carrier, Customer or any other third party, including for (i) Customer’s breach of this Agreement or of any terms contained in an applicable bill of lading or of the carrier’s General Rules Tariff, (ii) improper or insufficient packing, securing, marking or addressing, or (iii) failure to observe any of the rules relating to shipments. Sheltered shall only be liable for loss, damage, mis-delivery or non-delivery caused by Sheltered’s gross negligence. Customer acknowledges that Sheltered has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.
7. Indemnification. Customer shall indemnify, defend and hold Sheltered harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) that result from any claim, suit, action, or proceeding (each, a “Claim”) arising out of Customer’s negligence or Customer’s breach of a representation, warranty or covenant set forth in this Agreement.
8. Term and Termination. This Agreement will continue until the expiration or termination of the last-surviving Quote. Either party will have the right to terminate this Agreement or any Quote if the other party materially breaches this Agreement or any Quote and fails to cure such breach within thirty (30) days after receipt of written notice from the non-breaching party. Sheltered may terminate this Agreement or any Quote within five (5) days after written notice to Customer. Within thirty (30) days after such expiration or termination, each party shall return or
destroy all Confidential Information of the other party in its possession that it does not have a continuing right to use pursuant to the express terms of this Agreement.
9. Miscellaneous Provisions.
- a. This Agreement together with the applicable Quotes constitutes the entire agreement between the parties with respect to the subject matter herein, and supersedes all prior agreements between the parties. Sheltered may modify the terms of this Agreement from time to time by posting most up-to-date terms on its website, https://siships.com, and such changes shall be effective for all transactions between Sheltered and Customer after the date of such posting.
- b. Waiver. Either party’s failure to enforce any provision of this Agreement will not be construed as a waiver of any provision or right. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
- c. Assignment. Sheltered may delegate the performance of any or all of the Services hereunder to third parties, provided that Sheltered will remain liable for performance hereunder. Customer may not assign this Agreement or its rights and responsibilities hereunder without the prior written consent of Sheltered. Subject to the foregoing, this Agreement will be binding upon the parties’ respective successors and permitted assigns.
- d. Trade Name. Customer agrees that Sheltered may refer to Customer by trade name and trademark, and may briefly describe Customer’s business and the nature of this Agreement, in Sheltered’s marketing materials and website.
- e. Choice of Law; Venue. The laws of the State of Florida (excluding its choice of law rules) will govern interpretation and enforcement of this Agreement. Any claim, dispute or litigation relating to this Agreement, any shipment scheduled or tendered hereunder or through Sheltered ‘s website, or any dispute between Sheltered and Customer, and shipper, consignee or broker for Customer, shall be filed in Nassau County, Florida or in the United States District Court for the Middle District of Florida in Jacksonville.
- f. Attorneys’ Fees. If either party employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs from the other party.
- g. Force Majure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, without limitation, act of war, acts of God,earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, or governmental act. Sheltered and Customer are independent contractors
- h. Notice. Any notice or communication hereunder may be delivered by hand, deposited with an overnight courier, sent by confirmed facsimile, sent by email, or mailed by registered or certified mail, return receipt requested, postage prepaid. Such notice will be deemed to have been given as of the date it is delivered, mailed or sent, whichever is earlier.
- i. Authority. By signing below or agree to be bound by these terms electronically, Customer’s agent represents and warrants that he or she has been duly authorized to make the statements contained herein and to bind the Customer to the terms of this Agreement, and represents and warrants that the information set forth above and in any other document provided to Sheltered Intranational is true, complete and correct
- j. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.