Flexport U.S. and Mexico Truck Broker Terms and Conditions
By requesting or accepting goods or services from Flexport, Inc. and/or its subsidiaries and affiliates (collectively, "Flexport"), the Customer agrees to the following terms and conditions of service ("Terms and Conditions of Service").
Flexport may from time to time change these Terms and Conditions. Any changes are effective immediately upon publication on our website at www.flexport.com/terms. Copies of the Company's most recent Terms and Conditions of Service may be obtained by contacting the Company and are available at the web address indicated above.
Flexport International, LLC Property Broker Terms and Conditions of Service
Flexport International, LLC (hereinafter “Company”) is a licensed property broker as defined by 49 U.S.C. § 13102 (2) operating under FMCSA MC No. 906604-B. The Company only undertakes to arrange for the transportation of shipments on behalf of its customers (“Customer”). The Company may arrange for either independent, properly licensed motor carriers or properly licensed property brokers to perform or effectuate the transportation services. Such motor carrier and property brokers are referred to herein as "Third Parties". The Terms and Conditions of Service set forth herein govern the terms under which the Company shall provide brokerage and related transportation services for any shipment that originates in, travels through, or is to be delivered in the United States or Mexico.
Company as Independent Contractor. The Company is authorized to act on behalf of the Customer in order to effectuate the performance of transportation services by Third Parties as set forth in paragraph 3. Third Parties may limit their liability and may operate under terms and conditions further defining the rights, obligations, and defenses of those Third Parties. The Company is also authorized to agree to those terms on behalf of the Customer. At all times, the Company acts as an independent contractor, and not as an agent, joint venturer or partner of the Customer.
Limitation of Actions. All claims against the Company for a potential or actual loss must be made in writing and received by the Company, within 30 days of the event giving rise to claim. The failure to give the Company timely notice shall be a complete defense to any suit or action commenced by the Customer. All suits against the Company must be filed and properly served on the Company within two (2) years from the date of the loss or damage.
No Liability for the Selection or Services of Third Parties and/or Route. It is expressly understood that in the performance of its duties the Company shall arrange for Third Parties to perform or effectuate the transportation and related services required by the Customer. Such Third Parties shall be duly authorized to transport, or arrange for transportation of, such shipments pursuant to all applicable regulatory authority. It is understood and agreed that the Third Parties are independent contractors of the Company who have and retain the exclusive control over their respective drivers and employees, and such Third Parties are not agents, employees or authorized representatives of the Company, or its employees, agents and affiliated entities. Unless services are performed by persons or firms engaged pursuant to express written instructions from the Customer (see paragraph 11, below), the Company shall use reasonable care in its selection of Third Parties, or in selecting the means, route and procedure to be followed in the handling, transportation, and delivery of the shipment. Advice by the Company that a particular Third Party shall render services with respect to the goods shall not be construed to mean that the Company warrants or represents that such person or firm will render such services. The Company does not assume responsibility or liability for any actions(s) and/or inaction(s) of any Third Party and/or its agents. The Company shall not be liable for any delay or loss of any kind, which occurs while a shipment is in the custody or control of a Third Party or the agent of a Third Party. All claims related in any way to the acts or omissions of a Third Party shall be brought solely against such Third Party and/or its agents. If the Customer submits a claim to a Third Party, then the Company shall cooperate with the Customer to support Customer's efforts to recover, provided, however, that the Customer shall be liable for any charges or costs incurred by the Company.
Accepting Third Party Terms and Declaring Higher Value to Third Parties. Third Parties to whom the goods are entrusted may limit liability for loss or damage. The Company will request excess valuation coverage from Third Parties only upon specific written instructions from the Customer. The Customer must agree in writing to pay any additional charges associated with the Customer's declaration of the higher value. Customer expressly acknowledges that there is a distinction between excess valuation coverage, which increases the legal liability amount of the Third Party beyond its standard released value, and a request for insurance, which is a contract of indemnity issued by a licensed insurance company (insurance is covered in paragraph 5 below). In the absence of written instructions from the Customer, and/or in instances in which the Third Party refuses to agree to a higher declared value, the Company, at its sole discretion, may arrange for a Third Party to transport or effectuate transportation subject to that Third Party’s limitations of liability and/or terms and conditions of service.
Insurance. (a) First Party Cargo Insurance. The Company or its affiliate will procure first-party cargo insurance on Customer's behalf when the Customer accepts a quote that includes charges for first-party cargo insurance, or the Customer otherwise indicates in writing that it desires to insure its goods while they are in transit. The Customer shall pay all premiums and costs associated with procuring first-party cargo insurance. (b) Third-Party Liability Insurance. Unless otherwise agreed in writing, the Third Parties who perform or effectuate the performance of the transportation and related services shall be contractually obligated to maintain liability insurance covering the loss of or damage to cargo in the amount of $100,000; provided, however, that the Company shall not be responsible for any Third Party's failure to maintain such liability insurance or for the accuracy of any documentation that a Third Party furnishes to Company or Customer evidencing said liability insurance coverage. The fact that a Third Party maintains cargo liability insurance in any amount does not mean that such Third Party accepts financial responsibility for cargo loss or damage up to the limits of its cargo liability insurance. Rather, a Third Party may limit its liability to a level below the limits of its cargo liability insurance.
Disclaimers and the Company's Limitation of Liability. Except as specifically set forth herein, the Company makes no express or implied warranties in connection with its services as a property broker and any and all warranties, whether statutory, express or implied are hereby deemed waived and specifically disclaimed. Subject to the terms below, the Customer agrees that in connection with any and all services performed by the Company pursuant to these Terms and Conditions of Service, the Company shall only be liable when its negligent acts are the direct and proximate cause of an injury to Customer, and in no event shall the Company ever be liable for the acts of Third Parties. Subject to the foregoing, the Company’s liability for any loss or damage sustained by the Customer shall be limited to $50.00 per shipment or transaction, regardless of the amount of losses or damages claimed by the Customer. This limitation shall apply to any claim made against the Company, including but not limited to, claims for loss or damage to goods, documentary error(s), mis-delivery, theft, tender to unauthorized parties, or any act or omission or other cause resulting from the negligence or other fault of the Company. In addition, and independent of any other limitation set forth herein, in no event shall the Company be liable in any way for consequential, indirect, incidental, statutory or punitive damages allegedy sustained by the Customer, regardless of whether the Company has been put on notice of the possibility of such damages. Without limiting the foregoing sentence, and for the avoidance of any doubt, it is agreed that the Company shall not be liable to the Customer for any losses, expenses, costs, or damages arising or related to any delay in the pickup, transportation or delivery of any goods or any delay in the performance of any services provided hereunder. In addition, the Company shall have no liability if it is prevented from or delayed in performing its obligations or from carrying on its business by acts, events, omissions or accidents beyond its control, including, but not limited to, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network including reduction in bandwidth, act of God, war, riot, civil commotion, malicious damage, compliance with any law or government order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic or epidemic or any other force majeure event.
Inapplicabillity of Carmack Amendment. The Customer agrees and understands that the Company is at all times acting as a property broker, and that the Carmack Amendment to the Interstate Commerce Act (as amended), 49 U.S.C. § 14706, does not apply to property brokers. If a court of competent jurisdiction determines that Company is acting in a capacity other than that of a property broker, then, pursuant to 49 U.S.C. § 14101(b), Customer or any other intended beneficiary of the services provided by the Company, hereby specifically and expressly waives any rights arising under the Carmack Amendment, to opt out of the application of the Carmack Amendment to any claims against the Company, and that these Terms and Conditions of Service alone shall govern such claims.
Packing and Marking. All shipments tendered by the Customer must be prepared and packaged to ensure safe ground transportation. By tendering a shipment to any motor carrier, the Customer certifies that the shipment is sufficiently packaged to withstand the normal rigors of truck transportation. Each package must be legibly marked prior to the shipment being tendered for transportation. Any article susceptible to damage by ordinary handling must be adequately protected and packaged and marked in such a way as to alert the Company or a Third Party of the possibility of damage from ordinary handling. The Customer shall in every instance give The Company written notice whenever a shipment contains "hazardous materials" as that term is defined in 49 C.F.R. § 171, et. seq, or goods pose an inherent danger during transit. The Customer agrees to indemnify and hold the Company harmless for any loss, injury, death or damage, including all expenses and attorney’s fees, that the Company suffers as a result of the Customer's failure to disclose such information.
Charges and Costs of Collection. The Customer agrees to pay the Company for all services at the rates communicated by the Company from time to time, including, but not limited to, accessorial charges per the Company's Standard Trucking Accessorial Rate Sheet which is available upon request. The Customer shall pay all freight and accessorial charges in full, without any reduction based upon an alleged offset, counterclaim or other deduction. Full payment of freight and accessorial charges shall be a condition precedent to the Customer's right to assert an offset, counterclaim or other deduction. The Customer must contest/dispute any freight or accessorial charges in writing within 30 days of its receipt of an invoice that includes the contested charges. In any dispute involving monies owed to the Company, the Company shall be entitled to recover all of its costs of collection, including reasonable attorney’s fees. Interest shall accrue on unpaid balances per the Company's Payment Terms and Conditions or, in the alternative, per the terms of any written agreement signed by the Company and the Customer.
Overcharge, Duplicate Payment and Over-Collection Claims. Any overcharge, duplicate payment or over-collection claim made by the Customer must be filed, in writing, with the Company within 180 days from the date of the Company’s invoice. The Company shall present any invoices for undercharges to the Customer within 180 days of the Company’s initial invoice.
Merchant Haulage. If the Customer specifies that a particular Third Party shall conduct or effectuate transportation and related services, then it is agreed and understood that the Company shall not be acting as a property broker, but instead shall be providing only administrative services to the Customer. In such situations, the Customer agrees that the Company shall have no liability of any kind for the selection of the Third Party and that the Company shall have no liability for any losses caused by the acts or omissions of such Third Parties. When the Company is acting in this capacity, then the Flexport Customs Brokerage and General Terms and Condistions shall govern.
Service to, from, or through Mexico. If shipment has an origin, a destination or at any point travels through the United Mexican States (“Mexico”), then any loss of or damage to any cargo in the shipment shall be presumed to have occurred in Mexico absent clear and convincing proof that the loss or damage did not occur in Mexico. For cargo loss or damage that occurs within Mexico, a border gateway commercial zone of Mexico, and/or for any claim that is determined to be governed by the laws of Mexico, the Company’s liability, and the liability of any Third Party, shall be subject to the limitation established for Mexican carriers under Mexican Law at the time the claim arises, which is currently limited to an amount equal to fifteen times the then current Unit of Measure and Update published in the Mexican Federal Gazette, per metric ton of affected cargo or a proportional amount if less than a metric ton of cargo was lost or damaged. This measure/limit of liability applies regardless of the terms of any bill of lading, rate confirmation sheet, carta de porte, service order, delivery order or other document issued by any person related to the subject shipment. The liability of a Third Party (and not the Company) for cargo loss or damage may be increased if all of the following conditions are met: (i) not less than 72 hours prior to in advance of the shipment’s pickup appointment, the Customer declares a specific value for a shipment/cargo for the express purpose of obtaining a higher limit of liability; (ii) the Third Party’s written agreement to accept a heightened limit of liability (which may be equal to or less than the specific value that the Customer declares); and (iii) the Customer expressly agrees, in writing, to pay the charge quoted for an increased limit of liability. The Customer acknowledges that for all services rendered within Mexico, the Mexican carrier performing the transportation shall be required to issue, among other tax documents, a Complement Bill of Lading prior to each shipment, pursuant to the applicable regulation in Mexico. Since the issuance of the Complement Bill of Lading will require certain information from the Customer, the Customer undertakes to provide the information solicited by the Company in advance of each shipment. The Customer shall be responsible for the classification of the cargo according to the catalog published by the Mexican Tax Authority (SAT) and must send such classification to the Company. Any change in the classification of the cargo, must be informed to the Company at least 3 (three) calendar days prior to its shipment. Customer further acknowledges that any change of route, destination, cargo quantity, weight and/or classification, operator and/or vehicle (as requested by the Customer) will require the issuance of new Complement Bill of Lading, and consequently, Customer agrees to provide the new information to Company at least 3 (three) calendar days prior to its shipment, and if applicable, pay for any additional costs that may arise from such changes, if those were requested by Customer. Customer agrees that without this information Customer’s cargo cannot be transported in Mexico. Since the Complement Bill of Lading will be issued based on certain information provided by Customer, Company shall not be responsible for the veracity and accuracy of said information and shall not be liable for any failure, fault, negligence, damage, loss or seizure of the cargo or any delay in the provision of services or transportation of the cargo, directly attributable to Customer’s acts or omissions arising from the inaccuracy, error or falsification of data provided directly by the Customer. Customer agrees to indemnify and hold the Company safe and harmless from any fine, claim, penalty or any other liability arising out of or in connection with such circumstances related to information included in the Complement Bill of Lading.
No Modification or Amendment Unless Written. These Terms and Conditions of Service may only be modified, altered or amended in writing signed by both the Customer and the Company. Any attempt to unilaterally modify, alter or amend these Terms and Conditions of Service except as specified in this paragraph shall be null and void.
Severability. If any Paragraph(s) and/or portion(s) hereof is found to be invalid and/or unenforceable, then the remaining provisions of these Terms and Conditions of Service shall remain in full force and effect. The Company’s decision to waive any provision herein, either by conduct or otherwise, shall not be deemed to be a further or continuing waiver of such provision or to otherwise waive or invalidate any other provision herein.
Governing Law; Consent to Jurisdiction and Venue. Except as otherwise expressly stated herein, these Terms and Conditions of Service and the relationship of the parties shall be construed according to the laws of the State of California, without giving consideration to principles of conflict of law. The Customer and the Company irrevocably consent to being subject to the personal jurisdiction in the jurisdiction of the United States District Court and the State courts of California, and each agrees that any action relating to the services performed by the Company shall only be brought in said courts.