Cargo Terms of Service
Date of Last Revision: January 22, 2024
These Cargo Terms of Service (“Cargo Terms”) apply to surface transportation by truckload (“TL”) and less-than-truckload (“LTL”) carriers, together with any and all air or other transportation services (collectively “Cargo Services,” as further defined below) provided or arranged by Parcelcast, LLC dba Maergo or any of its affiliates (the “Company”). These Cargo Terms and all documents incorporated by reference (collectively, this “Agreement”) are a legal contract between you (“you” or “Customer”) and the Company which governs your access to and use of the Services (as defined below). These Cargo Terms and this Agreement do not apply to parcel shipments. All TL, LTL, and air cargo related transportation services provided by or arranged for by Company are performed pursuant to these Cargo Terms, unless a written agreement signed by the parties states otherwise. By using the Cargo Services, you agree to the terms of this Agreement. If you do not agree to all of the terms of this Agreement, you must not use the Services. This Agreement is effective as of the date of your acceptance of these terms and conditions by signing a Cargo Shipping and Logistics Services Order (“Cargo Order”) or by using the Cargo Services (“Effective Date”). Customer and Company are referred to collectively in this Agreement as the “Parties” and each individually as a “Party.”
For mutual consideration, receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
No terms or conditions inserted by Customer on any Company purchase order or other business form relating to use of the Cargo Services will modify or otherwise affect the terms of this Agreement, regardless of any failure of Company to object to Customer’s variant terms. The same shall be true for any documents created or used by Customer that are not signed by an authorized representative of Company prior to transport. Subcontracted service provider signatures are not sufficient to bind Company.
Company reserves the right, in its discretion, to modify portions of the terms and conditions of this Agreement (“Changes”) at any time. The date that any Changes were last made to this Agreement are indicated at the top of the page, and such Changes are effective as of that “Date of Last Revision.” Company will notify Customer of Changes by posting a revised version of this Agreement incorporating the Changes to Company’s website. Customer’s continued purchase or use of the Cargo Services after any Changes to this Agreement on the Company website will mean that Customer accepts and agrees to those Changes. Such Changes will apply prospectively beginning on the date the Changes are posted to the Company’s website.
Capitalized terms used in this Agreement have the meanings given to them in the Definitions.
The following terms, when used in this Agreement, including any Order and all Schedules to that may be incorporated into this Agreement, shall have the following meanings:
“Cargo” means any non-parcel shipment, large packages, skids or property that the Customer tenders to Company for air or ground services, including but not limited to all items over fifty pounds.
“Cargo Services” means the domestic freight and shipping services arranged by Company for Customer pursuant to this Agreement, including arranging transportation of accepted Cargo via third-party carriers and other providers.
“Customer Data” means any data, data sets, or other information made available to Company by Customer in connection with the Cargo Services, including End User data, when applicable.
“End User” means the individuals authorized by Customer to access and use the Cargo Services at any one time through the Customer account under this Agreement, and for whom Customer has issued or approved access credentials. Subject to the specific Cargo Services, Customer may identify certain End Users who will have specific roles or administrative, security, and supervisory capacities with respect to the Cargo Services.
“Hazardous Materials” means a substance or material that the U.S. Secretary of Transportation has designated as hazardous pursuant to 49 U.S.C. § 5103. The term includes, but is not limited to, hazardous substances, hazardous wastes, marine pollutants, elevated temperature materials, materials designated as hazardous in the Hazardous Materials Table (see 49 C.F.R. 172.101), and materials that meet the defining criteria for hazard classes and divisions in 49 C.F.R. Parts 173 and 174.
“Includes” and “including” mean “including without limitation.”
“Parcel” means the merchandise or property tendered to Company by Customer in small packages, intended for transport by parcel carrier, including but not limited to courier, U.S. Mail, or other third-party parcel carrier.
“Prohibited Items” means antiques, biological substances, bagged goods such as cement, stocks or bonds, dangerous goods (except shipments with batteries or cosmetic items in excepted quantities or as otherwise mutually agreed upon by the parties in writing), illegal goods (such as ivory), deeds, documents, manuscripts, plans, securities, stamps, treasury notes, bullion, cash, jewelry, precious metals and stones, cement, cigars, cigarettes (as defined at 15 U.S.C. § 375), smokeless tobacco (as defined at 15 U.S.C. § 375), loose tobacco, vape and vape-related items to include ENDS, firearms and weapons, fragile articles, furs, animals, livestock perishable foodstuffs, pharmaceuticals, plasma screens, scrap metals, television sets, unprotected goods, video recorders, secondhand goods, counterfeit goods, white goods (i.e., stoves, ovens, refrigerators, washing machines, microwaves and dishwashers, including parts, spares, and ancillary equipment), one-of-a-kind articles or models, prototypes, valuable rugs (i.e., Oriental rugs and Persian rugs), guitars and other musical instruments that are more than 20 years old, customized or personalized musical instruments, plants, prints or lithographs, or household goods and/or personal effects when the total declared value of the shipment exceeds $500.00, or when the declared value exceeds $0.50 per pound, per piece, or items that weigh greater than 50 pounds.
“Representative” means any employee, agent, representative, contractor, or subcontractor of a Party or any of such Party’s contractors or subcontractors.
1. CARGO SERVICES; USAGE RIGHTS AND RESTRICTIONS
- Cargo Services. Subject to the terms and conditions of this Agreement, and in its sole discretion, Company agrees to provide the Cargo Services to Customer. Company reserves the right to refuse to transport any Cargo that it determines, in its sole discretion, do not comply with the terms and conditions of this Agreement, applicable laws, or Company’s general business parameters.
- Changes to Services. Company may, at its sole discretion, modify the Cargo Services available under this Agreement from time to time; provided, however, that Company will continue to offer Cargo Services to Customer to the same extent that it provides Services directly to its general customer base. Without limiting the foregoing, Company may add or discontinue service to designated geographical areas, expand or narrow the features of a service offering, cease a particular service offering, or add an additional service offering.
- No Other Rights. Except as expressly set forth in the Agreement, no additional rights are granted to Customer. Company hereby reserves all rights not expressly granted to Customer under the Agreement.
2. PAYMENT OF FEES
- Services Fees. Customer agrees to timely pay all fees related to the Cargo Services it receives.
Where applicable, rates and charges for Customer’s Cargo shipments will be based on actual or dimensional weight, whichever is greater. Where applicable, calculations shall presume a dimensional factor of 194 unless otherwise agreed in writing. Customer is responsible to provide accurate weight and measurements for its Cargo shipments. Cargo shipments are subject to re-weigh and re-measurement by Company to confirm accuracy.
- Invoicing. Customer agrees to remit payment for each invoice by ACH within 14 days of the invoice date. If, after 14 days, Customer has failed to pay an invoice, interest will accrue and be payable at the lesser of the maximum rate permitted under applicable law, or 1.5% per month, from the date due until paid in full. If any amount owed by Customer under the Agreement is 10 days or more overdue, Company may, without limiting Company’s other rights and remedies, (a) suspend the Cargo Services to Customer until such amounts are paid in full; (b) exercise all rights available under the law, including those set forth in the applicable version of the Uniform Commercial Code; and (c) revoke any discounts. Once an invoice is more than 21 days past due, a late payment fee of 6% shall apply.
- Taxes. All Service Fees are exclusive of applicable federal, state, or local taxes and all use, sales, value added, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees, and surcharges (collectively, “Taxes”), whether charged to or against Company. All such Taxes will be the sole responsibility of and payable by Customer. Customer will pay to Company an amount equal to any Taxes arising from or relating to the Agreement, which are paid by or are payable by Company. If Customer is required under any applicable law or regulation to withhold or deduct any portion of the payments due, then the sum payable to Company will be increased by the amount necessary for the Company to receive an amount equal to the sum it would have received had Customer made no withholdings or deductions.
- Notice of Fee Disputes. Customer will notify Company in writing if it disputes any portion of any Service Fees, Taxes, or other amounts paid or payable by Customer under this Agreement. Customer will provide such notice to Company within 30 days of the applicable charge, and the parties will work together to resolve the dispute promptly. Upon expiration of the 30-day period, Customer will not be entitled (and hereby waives any right) to dispute any Service Fees, Taxes, or other amounts paid or payable by Customer.
- Confidentiality. Each Party acknowledges that in connection with the formation and performance of this Agreement, it may disclose to the other Party certain non-public confidential information, the disclosure of which to third parties would be damaging (“Confidential Information”). Such Confidential Information includes Company’s and Customer’s rates, charges, customers and Customer Data, business plans and processes, financial information and data, sales data, technical data, Company application programming interface (“API”), correspondences and communications between Company and Customer, and any other documents marked “Confidential” and/or “Proprietary.” Both parties agree to (a) use this Confidential Information only in the performance of this Agreement, (b) not disclose this Confidential Information to any other Party (except Representatives with a need to know such information solely for purposes related to this Agreement), and (c) treat this Confidential Information with the same degree of care with which they treat their own Confidential Information of like importance. This section will not apply to (i) information which a Party can prove was previously known to it, (ii) information lawfully received from a third party without an obligation of confidentiality, (iii) information which becomes known to the public, (iv) information which is independently developed by a Party, and (v) information required by law to be disclosed; provided, however, that the other Party will be given written notice of such required disclosure. Notwithstanding the foregoing, Company reserves the right to collect and analyze data and other information concerning the provision, use, and performance of the Cargo Services and related systems and technologies, in aggregate or anonymized form, to improve the Cargo Services and for related diagnostic and corrective purposes.
5. WARRANTIES AND DISCLAIMER
- Customer Warranty. Customer represents and warrants that it is in compliance with all applicable laws and hold all authorizations, permits, licenses, permissions, and consents required to tender Cargo provided to Company pursuant to this Agreement for transportation, and that all descriptions of the Cargo are complete, accurate, and include all information required by applicable law, rule, or regulations. If Customer is not the owner of the Cargo tendered for transportation, Customer nevertheless represents and warrants that it is authorized to arrange transportation of the Cargo on behalf of the owner in accordance with the terms and conditions of this Agreement, and has any required license or registration required to do the same. Customer further represents and warrants that its use of the Cargo Services shall not include shipments that contain any items that either are (a) prohibited by law from being shipped by a carrier or (b) otherwise prohibited from shipment pursuant to an applicable carrier’s policies and published terms and conditions (“Prohibited Items,” as further defined in the “Definitions” section of this Agreement). For the avoidance of doubt, Customer’s failure to notify Company that Prohibited Items have been included in Cargo tendered to Company (a “Prohibited Shipment”) shall constitute a breach of this Agreement by Customer. Company shall not be liable for any loss, damage, delay, liabilities, fees, penalties, or fines resulting from the transportation of any Prohibited Items. If Company discovers, after accepting a shipment, that it a contains a Prohibited Item, Company reserves the right to refuse to deliver the Prohibited Shipment to the consignee. Customer agrees to pay all charges, expenses, fines, and penalties for such Prohibited Shipment, and further agrees to indemnify and hold harmless Company and Company Group (as defined below) from any and all loss, damage, delay, liabilities, penalties, or fines of any nature arising out of or related in any way to such a Prohibited Shipment.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE CARGO SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW.
6. INDEMNIFICATION; LIMITATION ON LIABILITY
- Customer Indemnification. Customer shall defend, indemnify, and hold harmless Company and its affiliates and their officers, directors, and employees (collectively, “Company Group”) from and against any and all third-party claims, demands, causes of action, losses, liabilities, damages, judgments, costs and expenses (including reasonable attorneys’ fees and court costs) against Company Group, as defined below, arising out of or in connection with any act or omission of Customer, End User, or their related companies in connection with this Agreement and any failure to comply with applicable law.
- Company Indemnification. Except for loss, damage, delay, mis-delivery, or non-delivery of shipments, Company shall defend, indemnify, and hold harmless Customer and its officers, directors and employees (“Customer Group”) from and against any and all third-party claims, demands, causes of action, losses, liabilities, damages, judgments, costs and expenses (including reasonable attorneys’ fees and court costs) against Customer Group arising out of or in connection with (a) gross negligence or willful misconduct by Company in the performance of its obligations under this Agreement; (b) Company’s material breach of any provision of this Agreement; or (c) Company’s failure to comply with applicable law.
- Indemnity Process. The indemnified Party must (a) notify the indemnifying Party promptly in writing of the Claim, setting forth in reasonable detail the facts and circumstances surrounding the Claim; (b) give the indemnifying Party sole control of the defense of the Claim and any related settlement negotiations, including not making any admission of liability or take any other action that limits the ability of the indemnifying Party to defend the Claim; and (c) cooperating and, at the indemnifying Party’s request and expense, assisting in such defense. However, the indemnifying Party shall not settle any Claim without the indemnified Party’s prior written consent, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified Party of all liability, and imposes no obligations or restrictions on the indemnified Party. The indemnified Party may engage counsel of its choice at its own expense.
- Cargo Liability. Company will use reasonable efforts to arrange for the pick-up, transport, and delivery of Cargo tendered to Company for shipping pursuant to this Agreement in accordance with Company’s regular practices and procedures. HOWEVER, COMPANY SHALL IN NO CASE BE LIABLE FOR ANY LOSS, DAMAGE, DELAY, MISDELIVERY, OR NONDELIVERY. To the extent this provisions is deemed unenforceable by a court of law, Company’s liability shall never exceed the liability of Company’s carrier as set forth herein.
4a. LTL Shipments. On less-than-truckload shipments, Company’s carrier’s liability for loss or damage to any shipment of used products or portion thereof is limited to the lesser of (a) $0.10 per pound per piece lost or damaged with a minimum of $10.00 per shipment; (b) the replacement value of an item of like kind and quality; (c) Customer’s cost of the article or articles lost or damaged; or (d) the repair cost in the event that a claimed item can be repaired. Company’s carriers liability for loss or damage to any shipment of new products or portion thereof is limited to the lesser of (i) $0.50 per pound per piece lost or damaged with a minimum of $50.00 per shipment; (ii) the replacement value of an item of like kind and quality; (iii) Customer’s cost of the article or articles lost or damaged; or (iv) the repair cost in the event that a claimed item can be repaired. If a claimed damaged item, whether new or used, cannot be repaired, Customer shall provide, at its own expense, a third-party assessment and/or technician report which details the extent of the damage and why the item is unable to be repaired.
4b. TL Shipments. On truckload shipments, Company’s carrier’s liability shall be limited to the lesser of (a) $100,000 per truckload shipment; (b) the replacement value of an item of like kind and quality; (c) Customer’s cost of the article or articles lost or damaged; or (d) the repair cost in the event that a claimed item can be repaired or (e) $0.50 per pound per piece lost or damaged. Notwithstanding the foregoing, articles and/or shipments with a declared value in excess of $25,000 will not be accepted for transportation unless Customer makes advance arrangements therefore with Company via electronic notification, email or U.S. postal service at least 48 hours prior to shipment. Moreover, in no event shall Company’s liability for aggregate losses at any one time at any one place exceed $100,000. Higher levels of carrier liability are available by requesting the same at least 48 hours prior to the shipment, in writing, obtaining a quote from Company for the additional freight charges, and accepting the same.
4c. Air Shipments. In connection with any international shipment of Cargo by air, Company’s carrier’s liability shall be limited in accordance with any applicable international carriage of goods convention, and shall not exceed 22 Special Drawing Rights (“SDRs”) per kilogram. In all other instances, including shipments within the United States, as well as in any instance involving and international shipment in which the terms of an international carriage of goods convention do not apply, Customer agrees that Company’s carrier’s liability shall not exceed $.50/pound, $50 per shipment, or the invoice value, whichever is less, regardless of cause of loss or damage, to the maximum extent permitted by law.
NEITHER COMPANY NOR ITS CARRIER SHALL BE LIABLE FOR PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS.
Company shall not be liable for loss or damage to exterior packaging our outside shipping containers.
Company agrees to move shipments of used products under the following conditions: Company shall not be liable for any concealed loss and/or damage not noted on the delivery receipt at the time of delivery. Company shall not be liable for any electrical and/or mechanical derangement, rust, oxidation, discoloration, or cosmetic damage of any kind to the used product shipped. The shipment(s) must be properly packaged and/or crated in order to withstand ordinary care in handling during transit.
Due to the inherent nature of the transportation business, Company does not guarantee pick-up, transportation, or delivery by a special date or a special time, and shall not be liable for any claimed delay in pick-up, transportation, delivery, or consequences resulting therefrom.
- Claims for Loss or Damage to Cargo. All claims for loss or damage to Cargo on LTL and TL shipments must be submitted in writing to Company by Customer within nine months from the date of delivery of the shipment or, in the event of non-delivery, from anticipated delivery. All claims for partial loss or damage to shipments on Cargo transported by air must be submitted in writing to Company by Customer within 14 days from receipt of the goods (21 days in the case of delay). Claims for total loss on air shipments must be submitted in writing to Company within 120 days of the issuance of the airwaybill. Failure to present a written claim within the periods set forth above, fully documented and including all supporting evidence, shall extinguish the claim in its entirety. All In the case of claims for loss or damage to shipment(s), Company must be allowed the opportunity to make inspection of the shipment(s), container(s), and packaging material(s) at the place of delivery. Failure to afford Company the opportunity to inspect claimed product and all related packaging shall be a bar to recovery of any claim. In the event Company approves a damage claim for payment, Company shall be entitled to possession of the portion of the shipment for salvage for which claim was made and payment approved, with the exception of food products that may cause harm if sold in a damaged state. The failure to provide the damaged goods to Company shall be a bar to recovery of any claim.
Any claim for damage to Customer’s, the shipper’s and/or the consignee’s premises incurred during performance of Cargo Services will be deemed untimely unless noted on the bill of lading or delivery receipt or reported to Company or its carrier in writing within 24 hours of service at that location. Failure of Customer, the shipper and/or the consignee to notify Company’s Corporate Office of any such damage in a timely manner will be grounds for declination of any such claim; and Customer, the shipper, and/or the consignee will be barred from pursuing any such claim in a court of law or otherwise. In order for Company to consider any such claim, Company must be allowed the opportunity to make inspection of any property damage.
No claims will be considered until all transportation charges have been paid, except in instances where no part of the shipment has been delivered. Claims may not be deducted from transportation charges and no claims may be deducted from any other charges owed to Company. Company reserves the right to deduct claim payments from open Customer balances.
Formal claims, notices, and all related correspondence shall be filed with Company at 500 E. 4th Street #492, Austin TX 78701 or emailed to [email protected].
- Waiver of Inconsistent Terms. Pursuant to 49 U.S.C. §14101(b), the parties hereby waive any and all rights and remedies provided by Part B to Subtitle IV of Title 49 to the U.S. code, including, but not limited to those set forth in 49 U.S.C. § 14706, and case law interpreting the same, to the extent such rights and remedies conflict with the provisions of this Agreement, to the maximum extent permitted by law. Customer acknowledges and agrees that the sole liability of Company with respect to loss, damage, or delay to Cargo shall be as set forth in this Agreement 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 paragraph.
At time of delivery, the consignee must note on the delivery receipt any exceptions to the count or condition of the shipment or the shipping containers. Where otherwise liable under these Cargo Terms, Company or its carriers shall not be liable for concealed loss or damage not noted on the delivery receipt and/or not consistent with visible signs of damage to the outside shipping container(s), unless Customer provides written notice to Company within 48 hours of delivery (or verbal notice in the case of damage to perishable commodities) and is able to prove that such loss or damage occurred while the shipment was in Company’s or its agent’s possession. A clear delivery receipt shall be prima facie evidence of ordinary care in handling and receipt of the shipment(s) in full and in good condition. Notations such as “subject to inspection or count” will not be considered evidence of damage or shortage.
Customer understands and agrees that the rates charged by Company for Cargo Services do not include insurance or other compensation for loss/damage other than as expressly provided herein. Company may assist Customer, upon Customer’s request, with the placement of Cargo insurance. Unless requested by Customer in writing in advance of shipment, and such request is confirmed in writing by Company, Company is under no obligation to procure insurance on Customer’s behalf. Any such Cargo insurance procured by Company on Customer’s behalf shall be subject to the applicable policy terms thereof, and Company shall not be liable if, for any reason, Customer is unable to recover a loss, in whole or in part, from the insurer under said policy, even if the premium charged by the insurer is different from Company’s charges to Customer for the coverage. Should the Cargo insurance coverage made available by Company be insufficient to protect Customer’s interests, Customer is encouraged to consult an insurance broker of its own choosing so as to purchase insurance elsewhere. Customer agrees to waive subrogation in its insurance policies.
- Exclusion of Consequential Damages. In no event will Company or any of its suppliers (including but not limited to all equipment and technology suppliers and transporting carriers), affiliates, managers, members, officers, representatives, contractors, or employees (collectively, the “Released Parties”) be liable for any indirect, special, incidental, consequential, or punitive damages of any kind, nor any lost profits (whether direct or indirect), however caused, whether in contract, tort (including negligence), or under any other theory of liability, regardless of whether Company has been advised of the possibility of such damages, and in spite of any failure of the essential purpose of the agreement or any limited remedy hereunder.
7. GOVERNING LAW; DISPUTE RESOLUTION
This Agreement shall be governed by the laws of the State of Texas, without regard to principles of choice of law or conflicts of law. The parties irrevocably (a) submit to the exclusive jurisdiction of and venue in the state and federal courts located in Travis County, Texas, regarding any dispute arising out of or related to the Agreement or any transactions contemplated herein, and waive any arguments objecting to jurisdiction or venue in those courts; (b) agree that all claims, lawsuits, or other proceedings regarding any such dispute shall be heard and determined in such courts; and (c) agree that any judgment relating to such dispute may be enforced in any court of appropriate jurisdiction or in any other manner provided by law.
- Inspection; Consent to Screen for Air Transport. Company has the right to open and inspect a shipment without notice for safety, security, customs or other regulatory reasons. The Transportation Security Administration (“TSA”) considers all Cargo tendered for air transportation subject to screening/search by the forwarder, air carrier or the TSA; and requires that Company and its affiliates refuse to offer air transportation of any Cargo where the shipper/customer does not consent to screening of the Cargo. Company, its affiliates, and their hired carriers and the TSA may conduct screening of Cargo tendered under this Agreement. By tendering shipments to Company or any of its affiliates, Customer is deemed to consent to any such screening or search. No member of Company Group shall be liable for, and Customer shall indemnify and hold Company Group harmless for any claim arising out of, any loss, damage, or delay due to opening of Customer’s Cargo, resulting physical inspection or repackaging arising out of any such screening.
- Known Shipper Information and Privacy Act. Section 114 of United States Code Title 49 authorizes the collection of certain information pertaining to Customer to qualify Customer as or to verify Customer’s status as a possible “known shipper.” Although providing this information is voluntary, failure to provide the information will prevent you from qualifying as a “known shipper.” This information will be disclosed to TSA personnel and contractors or other agents including Indirect Air Carriers (“IACs”) in the maintenance and operation of the known shipper program. TSA may share the information with airport operators, foreign air carriers, IACs, law enforcement agencies, and others in accordance with the Privacy Act, 5 U.S.C section 552a. For additional details, see the system of records notice for Transportation Security Threat Assessment System (DHS/TSA 002) published in the Federal Register. Any fraudulent or intentionally false statements or certificate made by Customer may be subject to both civil and criminal penalties under 49 C.F.R. parts 1540 and 1548 and 18 U.S.C. § 1001, in addition to any other penalties that may be imposed by applicable laws.
- Hazardous Materials. Customer is responsible to inform Company any time a Cargo shipment contains Hazardous Materials or dangerous goods, in writing and at least 48 hours prior to transport. Additionally, Customer shall ensure the shipment complies with all laws, rules, ordinances, and regulations, including, but not limited to, the United States Department of Transportation regulations applicable to a shipper of goods.
- Specific Limitation of Liability and Indemnification. If Customer fails to comply with any provision set forth in section 8(1)-8(3), Company shall have no liability for any resulting loss or damage, regardless of the cause of such loss or damage and Customer shall be responsible to indemnify, defend, and hold Company harmless, including legal fees, environmental clean-up costs, fines, and penalties.
- Assignment. Customer shall not assign or transfer the Agreement, in whole or in part, whether by merger, operation of law, or otherwise, without Company’s prior written consent, such consent not to be unreasonably withheld. A change of control of Customer will be deemed an assignment for purposes of this Section. Company may assign or transfer its rights and delegate its obligations under the Agreement, without Customer’s consent, to an affiliate or pursuant to a corporate reorganization, merger, acquisition, or sale of all or substantially all of its assets to which the Agreement relates. Company may also subcontract parts of the Services to third parties as determined in its sole discretion. Any attempted assignment or delegation in violation of the foregoing is void. The Agreement is binding upon the Parties and their successors and permitted assigns.
- Independent Contractors. The Parties are independent contractors. Nothing in this Agreement or and no action taken by a Party pursuant to the Agreement will constitute a joint venture, partnership, or agency relationship with the other Party for any purpose, and neither Party will have the right to make any warranty or representation to such effect.
- Marketing. Company may include and use Customer’s name, trademarks, logos, and designs on a list of customers and may refer to Customer as a user of the Cargo Services in its advertising, marketing, promotional, and investor materials.
- Remedies. The Parties agree that money damages are not a sufficient remedy for any breach or anticipated breach of Section 1 (Services; Usage Rights and Restrictions) and Section 3 (Intellectual Property Rights; Confidentiality) or any other provisions of the Agreement which may cause either Party irreparable injury or may be inadequately compensable in monetary damages. Accordingly, each Party is entitled to seek specific performance, injunctive, or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond, and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.
- Notices. Unless otherwise provided in this Agreement, any notice, request, or other communication relating to the Agreement will be provided in writing and will be deemed to have been given by either Party to the other Party (a) upon the date of receipt, if hand delivered, (b) two business days (five business days for international addresses) after deposit in the U.S. mail if mailed to the other Party by registered or certified mail, properly addressed, postage prepaid, return receipt requested, (c) one business day (two business days for international addresses) after deposit with a national express courier for next business day delivery (three business days for international addresses), or (d) upon the date of electronic confirmation of receipt of a facsimile or email transmission. Notices to (i) Company will be sent to ParcelCast, LLC, 500 East 4th Street #492, Austin, Texas 78701, to the attention of: Legal Department, and (ii) Customer will be sent to Customer’s primary address and contact provided to Company in the Order, or at such other address as given by either Party to the other in writing.
- Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, pandemic, governmental act, or failure or degradation of the Internet. The delayed Party shall give the other Party notice of the force majeure, the anticipated impact of the force majeure on the affected Party’s performance, and use commercially reasonable efforts to correct its failures or delays in performance.