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Terms & Conditions

 

Welcome to FreightPOP. Thank you for choosing us for your transportation management needs. We hope you enjoy your experience with us. We are confident we will have a positive financial impact on your business and improve customer services for your customers.

Please read these Terms and Conditions carefully because they are a binding agreement between you and us.

FreightPOP, Inc.
www.freightpop.com

Updated: April 29, 2024

CUSTOMER STANDARD TERMS AND CONDITIONS

These Customer Standard Terms and Conditions (these “Conditions”) as well as the terms and conditions of any FreightPOP Provided rate quote/confirmation (the “Quote”), if any, apply to the provision or arrangement, as applicable, of any transportation services by FreightPOP INC.

These Conditions set forth the rights and obligations of FreightPOP INC. and Customer (defined below) except as otherwise set forth herein.

By tendering goods to FreightPOP INC. for Services, Customer expressly accepts these Conditions and warrants that acceptance of these Conditions has been authorized by a representative of Customer as of the date the Services were first provided to Customer by FreightPOP INC.

FreightPOP INC. may change these Conditions at any time without notice to Customer. The changed Conditions are in effect immediately. The version of these Conditions in effect on the date a shipment is tendered to the Company will apply.

Any motor carrier transportation or other logistics services provided by FreightPOP INC. are subject to Rules Tariffs, which are governed by the carriers offered. These Rules Tariffs can be found on the FreightPOP website at freightpop.com or by emailing freightsupport@freightpop.com

 

DEFINITIONS

“Bill of Lading” is a document issued by Customer, as applicable, that evidences the receipt of Goods for shipment to a specified destination and person. The term may include a waybill as context dictates.

“Carrier” means any motor carrier, including its drivers and independent owner operators, any rail carrier or rail transportation service provider, any intermodal equipment provider, any ocean or air carrier (including non-vessel operating common carriers and indirect air carriers), any warehouse operator, or other person or entity that provides transportation, storage, handling or related services to the Goods at the request of FreightPOP INC.

“Carrier Representatives” mean any employees, contractors, subcontractors, and agents of the Carrier.

“Claims” mean any and all liabilities, claims, losses, suits, actions, costs, fines, penalties, expenses (including attorney’s, paralegal’s and expert witness’ fees, and other costs of defense, investigation and settlement), judgments, or demands on account or damage of any kind whatsoever, including but not limited to personal injury, property damage, cargo damage or loss, environmental damage, or any combination thereof, suffered or claimed to have been suffered by any person or entity as well as the costs of enforcing indemnification obligations and costs of containment, cleanup and remediation of spills, releases or other environmental contamination.

“Customer” means the person or entity at whose request, for whose benefit, or on whose behalf FreightPOP INC. provides any Services, including any third-party logistics provider, shipper, consignor, consignee, beneficial cargo owner, or any agent acting on behalf of such person or entity.

“Facility” means a warehouse facility or other warehouse facility contracted by a FreightPOP INC. to provide storage, handling, transloading or warehousing services for Customer.

“Goods” means the cargo or goods for which the FreightPOP INC. is arranging transportation or providing other Services and includes packaging, pallets, packing materials, containers, and any related equipment.

“Governmental Authority” means any U.S or foreign (including foreign supra-national organizations such as the European Union) federal, state, provincial, regional or local government or any of their agencies, authorities, departments, regulatory bodies, tribunals, services, or other similar entities.

“IMC” means a person or entity that, for compensation, arranges, or offers to arrange, the transportation of Goods by intermodal transportation performed by authorized motor carriers and rail service providers.

“Intermodal Tariff” means the published directory, rules & policies/procedures, tariff, shipping guide or agreement of the applicable rail Carrier for its intermodal transportation services in effect at the time of shipment.

“Parties” means FreightPOP INC. and Customer unless otherwise specified, and “Party” means FreightPOP INC. or Customer, as applicable.

“Property Broker” means a person or entity that, for compensation, arranges, or offers to arrange, the transportation of Goods by an authorized motor carrier or rail transportation provider.

“Service Agreement” means a written agreement signed by an authorized representative of Customer and FreightPOP INC. pertaining to the Services provided by such FreightPOP INC.

“Trailer” means a container and chassis, or a trailer used for the rail, highway, or ocean transportation of Goods.

“Warehouse Services” means storage, handling, transloading or warehousing services provided by FreightPOP INC.

 

  1. APPLICATION OF THESE CONDITIONS

Except as otherwise expressly set forth herein, these Conditions apply to all the FreightPOP INC’s activities in arranging or providing Services. These Conditions apply except to the extent expressly superseded or waived in a Service Agreement. FreightPOP and Customers may, in a Service Agreement, agree to additional or amended service terms. In the case of conflict between any of these Conditions and any Service Agreement, the terms of the Service Agreement will govern. Where the specific Service Agreement is silent on any matter and does not expressly disclaim these Conditions, the provisions of these Conditions will apply with respect to such matter. In the event of a conflict between these Conditions and the terms and conditions set forth in any Quote, the terms and conditions of the Quote will govern.

Carrier Services are provided subject to and otherwise governed by, and Customer acknowledges and agrees that its rights against the Carriers are subject to, the Carrier’s Bill of Lading, including tariffs, service guides and similar documentation incorporated therein, as well as by contractual arrangements in place between the FreightPOP INC. and the Carrier.

  1. SERVICES REQUIRING SPECIAL ARRANGEMENTS

Customer will not request, and FreightPOP INC. will have no responsibility to:

  1. Arrange for Goods to be carried, stored or handled separately from other Goods;
  2. Arrange for Carriers or delivery agents to hold Goods until payment of any amount or until surrender of a document;
  3. Arrange for the transport of any restricted or prohibited by Carriers which can be found in Carriers' Rules Tariff, which are governed by the carriers offered. These Rules Tariffs can be found on the FreightPOP website at freightpop.com or by emailing freightsupport@freightpop.com

Customer will defend, indemnify, and hold the Company harmless against any Claims, as a consequence of the Company’s failure to make arrangements noted above.

 

  1. FreightPOP INC’S GENERAL RESPONSIBILITIES AND DISCLAIMERS
     
    1. Nothing in these Conditions or otherwise will be deemed to require or obligate the FreightPOP INC to accept Goods tendered by Customer for Services. If the FreightPOP INC. agrees to provide Services, FreightPOP INC. will exercise reasonable care arranging for or providing Services in accordance with these Conditions, and FreightPOP INC. will arrange for transport and related Services within a reasonable time after receiving Customer’s instructions, BUT FREIGHTPOP INC IS NOT RESPONSIBLE FOR COMPLIANCE WITH TRANSIT, PICKUP OR DELIVERY APPOINTMENT DATES OR TIMES AND WILL NOT BE LIABLE IN ANY WAY FOR TRANSPORTATION DELAYS. Where the Services include provision or arrangement of transportation, the FreightPOP INC’s obligation will be to provide or arrange such transportation with reasonable dispatch.
    2. FreightPOP INC. is not responsible to Customer or others for delay or deterioration of Goods from delay, whether with or without cause. FreightPOP INC. is also not responsible for deterioration of Goods arising from breakdown or malfunction of refrigerated equipment, or changes in temperature, even if the rates quoted are for temperature-controlled equipment or for temperature sensitive Goods.
    3. FreightPOP INC., its agents and the Carriers will remain at all times independent contractors vis-à-vis Customer. Carriers engaged by FreightPOP INC. will have sole and exclusive control over the manner in which they and their Carrier Representatives perform transportation services, including the operations of all vehicles and equipment used to perform its transportation services hereunder. Under no circumstances will Carriers engaged by FreightPOP INC., or their Carrier Representatives be deemed employees or agents of FreightPOP INC. or involved in any kind of joint venture and/or partnership with FreightPOP INC. The foregoing notwithstanding, FreightPOP INC. and Carriers may agree that FreightPOP INC. will act as the Carrier’s agent for the sole purpose of collecting the agreed-to freight charges related to Services. Except for such specific designation, none of the terms of these Conditions, or any act or omission of either Party will be construed for any purpose to express or imply a joint venture, partnership, principal/agent, fiduciary, employer/employee relationship between Customer, FreightPOP INC., or the Carriers.
    4. If requested, FreightPOP INC. will provide Customer with proof of acceptance and delivery of Goods shipped in the form of an original or imaged signed Bill of Lading or proof of delivery. Such documentation may be made available for accessing by Customer through FreightPOP INC.’s TMS Platform or other system. Additional charges may be applicable.
    5. For shipments moving intermodally or over the road, insertion of FreightPOP INC’s name on the Bill of Lading as the “carrier” by any entity other than FreightPOP INC. will be for Customer’s convenience only and will not imply that FreightPOP INC is actually the Carrier of that shipment or otherwise change the Company’s status in handling that shipment.

 

  1. CUSTOMER’S GENERAL RESPONSIBILITIES
     
    1. Customer must provide all information and instructions that are reasonably necessary for FreightPOP INC. to effectively arrange for the performance of the transportation and related services requested by Customer in accordance with any applicable laws, rules, regulations, or conventions. Customer will provide detailed and accurate descriptions of any Goods tendered for transportation and their accurate weights. Customer is responsible to be aware of and comply with applicable customs and import, export and transportation laws, rules, practices and regulations of the governmental authorities of the countries involved in a shipment; to complete and provide all required documentation; and to apply and pay for all licenses, permits or authorities required by governmental authorities to conduct the business and transportation contemplated by Customer.
    2. In no event will Customer tender any Goods that will or would reasonably be expected to contaminate, taint, corrode, or otherwise adversely impact the quality or condition of other Goods being transported, or the Trailer used in transporting the Goods.
    3. Customer warrants that it is either the owner or the authorized agent of the owner of the Goods tendered for Services and that it has the authority to, and does, accept these Conditions for itself and where applicable, as agent for and on behalf of the owner and any other person involved in the transportation, including but not limited to any consignor or consignee, logistics providers, freight forwarders, or insurers, and these Conditions will be binding on such persons or entities.
    4. Customer warrants that (1) all Goods have been properly and sufficiently prepared, packed, stowed, are fully and accurately described, labeled and/or marked, and that the preparation, packing, stowage, labeling and marking are appropriate to any operations or transactions affecting the Goods and the characteristics of the Goods, (2) the Goods are suitable for transportation in or on the Trailer; and (3) the Trailer is in a suitable condition to carry the Goods loaded therein. Furthermore, if the Goods are being transported through intermodal transportation, Customer warrants that, except to the extent that FreightPOP INC. has accepted instructions and explicitly accepted responsibility with respect to the loading, blocking and bracing of the Goods, (i) the Goods have been packaged, loaded, blocked and braced within the intermodal container in a manner to prevent shifting during intermodal transportation and in accordance with applicable industry standards, including the Intermodal Loading Guide of the Association of American Railroads and the guidelines of the applicable rail Carrier and (ii) the weight of the Goods and the intermodal container/trailer will not exceed applicable weight limitations and will be accurately stated in Customer’s shipping instructions. FreightPOP INC’s or the Carrier’s acceptance of any shipment will not be a waiver of Customer’s obligation to comply with the foregoing.
    5. Customer will obtain all necessary permits and authorizations necessary to ship the Goods, including, but not necessarily limited to, export and import licenses and permits, and agrees to comply with all applicable laws, including, but not necessarily limited to, any prohibitions on selling to any person on a U.S. or Canadian export control list.
    6. Customer agrees to comply with United States, European Union, and United Nations export control and trade sanctions laws and regulations ("Export Control and Trade Sanctions"), to include without limitation the following obligations: (i) Customer warrants that neither it nor its directors, officers, or subsidiaries are designated or sanctioned parties under Export Control and Trade Sanctions; (ii) Customer agrees not to request services in connection with goods, countries, regions, and/or parties subject to Export Control and Trade Sanctions absent government authorization and prior agreement with FreightPOP INC. (regions currently subject to applicable comprehensive embargoes are: Cuba, Iran, Syria, Sudan, North Korea and the Crimea Region of Ukraine); (iii) Customer agrees FreightPOP INC. may refuse to receive, process, or release an order that appears to FreightPOP INC. to involve goods, countries, regions, and/or parties subject to Export Control and Trade Sanctions; and (iv) in the case of cross-border transactions for which FreightPOP INC is providing transportation or customs-related services, Customer agrees to provide FreightPOP INC, within a reasonable time before export or entry, with complete and accurate information required by Export Control and Trade Sanctions, including product descriptions, quantities, weights, values, country of origin, harmonized tariff code, export classification, and any required government authorization.

 

  1. QUOTATIONS AND INVOICING
     
    1. FreightPOP INC. will invoice Customer for its Services (including the services it has arranged with a Carrier) in accordance with the rates, charges, and provisions set forth in any Quote provided to Customer or the Service Agreement with Customer, FreightPOP INC. will also be entitled to impose charges in accordance with FreightPOP INC’s then current rules and accessorial charges as amended from time to time. Current rules and accessorial charge estimates can be provided by emailing freightsupport@freightpop.com.
    2. If rates are negotiated between the Parties and not otherwise confirmed in writing, such rates will be considered “written,” and will be binding, upon FreightPOP INC. invoicing to Customer.
    3. Quotes are given on the basis of immediate acceptance and are subject to withdrawal or revision. Customer is solely responsible for additional charges such as waiting time, layover, demurrage etc. unless such charges directly arise from FreightPOP INCs failure to perform the Services in accordance with Customer instructions and such failure is not excused under these Conditions.
    4. All Quotes and associated charges do not include any state, county or harmonized sales taxes, or other use or value-added taxes, duties or similar charges, and Customer will be liable for such taxes, duties, or charges.
    5. Rates quoted by FreightPOP INC. do NOT include any fees, charges or duties related to customs, border crossing, or government taxes, unless otherwise stated. Among other charges, shipments crossing borders will be subject to charges for setouts of railcars, customs inspections, customs duties, delays for incorrect documentation and governmental fees.
    6. Generally, FreightPOP INC. will invoice Customer prior to billing from Carriers involved in the shipment. Where additional third-party charges have been applied, FreightPOP INC. will review the charges and, if the charges relate to Services provided to or received by Customer, may issue an adjusted invoice to Customer unless such third-party charges have been incurred solely as a result of error or omission on the part of FreightPOP INC.
    7. Customer agrees to pay invoices within the agreed-to credit period without deduction or setoff. If no credit period has otherwise been established, payment is due within thirty (30) days of the date of FreightPOP INC’s invoice. Customer acknowledges and agrees that FreightPOP INC. may, in FreightPOP INC’s sole discretion, establish credit limits applicable to Customer, which limits may be revised from time to time in FreightPOP INC’s sole discretion. FreightPOP INC. will apply payment to the amount due for the specified invoice, regardless of whether there are earlier unpaid invoices. Customer agrees that all overdue invoices will be subject to interest at 2% per month, or 24.0% per annum, on the outstanding balance plus collection costs.
    8. Customer must notify FreightPOP INC. in writing of any dispute regarding a Company invoice within sixty (60) days of the date of the Company invoice. If Customer fails to timely notify FreightPOP INC. of the dispute, FreightPOP INC’s original invoice will be deemed to be final, and Customer will be deemed to have accepted such invoice in full and to have waived any and all Claims or defenses to paying such invoice. As a condition precedent to collecting such a Claim, Customer must initiate an arbitration or lawsuit for overcharges, duplicate payment, overcollection or other invoice-related dispute within eighteen (18) months of delivery or tender of delivery of the shipments involved.

 

  1. CHANGED CIRCUMSTANCES/FAILURE TO TAKE DELIVERY

If events or circumstances, including Customer’s or its consignee’s failure to take delivery, occur that affect performance, FreightPOP INC. will take reasonable steps to obtain Customer’s further instructions. If, for whatever reason, FreightPOP INC. does not receive timely instructions, or FreightPOP INC., in its sole discretion, determines that compliance with such instructions is impracticable, FreightPOP INC. may:

  1. arrange for storage of, or store, the Goods at the sole risk and expense of Customer, or
  2. authorize any Carrier to abandon transportation and make the Goods or any part of them available to Customer at a place that is reasonable under the circumstances.

In the event that any shipment is refused or remains unclaimed at destination or any transshipping point in the course of transit or is returned for any reason, Customer will nevertheless pay FreightPOP INC. for all charges and expenses in connection therewith.

 

  1. DANGEROUS GOODS / HAZARDOUS MATERIALS

Customer will not tender for transportation or storage any dangerous goods or hazardous materials (as defined by applicable international convention or code, or otherwise applicable federal, state or provincial legislation or regulations, including but not limited to those set forth in DOT regulations, 49 C.F.R. Parts 100 to 185, and the Transport Dangerous Goods Regulations/Canada and to any further restrictions found in the Bureau of Explosives’ Tariff No. BOE-6000) without first giving full particulars of the Goods to FreightPOP INC. FreightPOP INC. or the Carriers may refuse to transport such dangerous goods or hazardous materials, or may charge an additional surcharge. Customer and its shipper(s) will comply with all applicable laws and regulations relating to the transportation of dangerous goods or hazardous materials including, but not limited to, descriptions, marking, packing, and shipping papers. Customer will be responsible for and will defend, indemnify, and hold harmless FreightPOP INC. and the Carriers for any Claims arising out of Customer’s failure to comply with the requirements imposed by this section. Goods which, in the opinion of FreightPOP INC. or the Carrier or other person who has custody or possession thereof, are or may become dangerous and present a hazard or become a nuisance (due to leakage, odors, appearance or other reasons) may at any time or place be unloaded, destroyed, stored, disposed of or rendered harmless at the expense of Customer and without liability on the part of FreightPOP INC. FreightPOP INC. is not responsible for reviewing any shipping instructions provided by Customer for classifying commodities to a hazardous materials class or for verifying whether the commodity is subject to any hazardous materials regulation or is properly classified.

 

  1. APPLICATION OF RAIL CARRIER TERMS AND RULES TO INTERMODAL TRANSPORTATION AND EQUIPMENT
     
    1. Each rail Carrier imposes certain requirements, limitations, and restrictions on shipments transported on their intermodal networks. All intermodal transportation is subject to the terms, conditions, requirements, limitations, restrictions, and procedures of the applicable rail Carrier’s Intermodal Tariff. The Intermodal Tariffs establish limitations of liability, cargo claims procedures and provisions, commodity restrictions, loading, blocking and bracing requirements, indemnification obligations, payment terms, arbitration of disputes requirements and other important restrictions. Customer should be familiar and comply with the provisions of the Intermodal Tariffs before becoming involved in any intermodal transportation movement. Customer represents and warrants that it will notify all persons or entities involved in the transportation, including the consignee, beneficial cargo owner, consignor, and other third parties, such as freight forwarders, freight brokers, third-party logistics providers, IMCs and insurers, that these Conditions (or any different terms set forth in a written agreement signed by FreightPOP INC’s authorized representative) and the Intermodal Tariff apply to intermodal transportation arranged by FreightPOP INC. Also, in tendering freight to FreightPOP to arrange for transportation, all such persons and entities will be conclusively presumed to have agreed to the provisions of these Conditions (except to the extent of any different terms and conditions that the Company has agreed to in writing) and the Intermodal Tariff.
    2. Customer will cause all empty intermodal Trailers tendered for loading to be inspected before loading and reject any unit that is not in apparent suitable condition to protect and preserve the Goods during transportation. Customer will promptly notify FreightPOP INC. of any rejected unit. If Customer requests that FreightPOP INC. arrange for Trailers to be dropped at a location for Customer’s convenience and left unattended, Customer will pay for loss or damage to the Trailer occurring during or as a result of such possession or use of the Trailer.
    3. Customer warrants that FreightPOP INC. may rely on Customer’s documentation as to the amount of weight associated with a loaded container or trailer tendered for intermodal transportation. In determining the weight, (Carriers should be required in their contracts to weigh their load, which will be the final weight). Customer will take into consideration the tare weights of the container and chassis or trailer, the position of the vehicle tandems (if sliding) prior to loading and the weight distribution of the cargo (including any blocking or bracing).
    4. Special rules and requirements apply to shipments crossing borders between the United States and Canada or Mexico. Customer should provide and plan for additional time for FreightPOP INC. and Carriers to process shipping information on cross-border shipments. FreightPOP INC. and the rail Carriers assess additional charges for shipments that do not comply with customs requirements or that must be set off from the train in transit due to inspection, paperwork or other customs-related issues. By tendering freight to FreightPOP INC., Customer will be conclusively presumed to agree to cooperate and to require the beneficial cargo owners, consignors, and consignees to cooperate reasonably with each other, FreightPOP INC. and the Carriers in defending against Claims or proceedings by Governmental Authorities alleging violations of customs, import, export, border crossing, transportation or related laws or regulations or breach of customs bond conditions. For intermodal shipments, FreightPOP INC. and the rail Carriers will hold shipments at the origin ramp or at intermediate ramps or may prevent the shipment from entering the terminal gate if customs and other documentation is not provided at the time that the shipment arrives at the origin terminal. Customer will be responsible for all origin storage charges, equipment per diem use charges and other costs until complete and accurate documentation is received. There will also be delays if the customs authority decides to inspect a shipment. Customer is responsible for all drayage, loading and unloading charges; customs brokerage costs; filing costs; and other costs associated with the government inspections or documentation requirements with respect to cross-border shipments.

 

  1. INSURANCE

FreightPOP INC. agrees to procure and maintain at its own expense, at all times, the following minimum insurance coverage amounts:

  1. Comprehensive general liability insurance (including contractual liability): $1,000,000
  2. Contingent Cargo Insurance: $100,000.

Upon request FreightPOP INC. will cause its insurance broker or carrier to submit to Customer a certificate of insurance as evidence of such coverage and which names Customer as “Certificate Holder".

 

10. PROVISIONS REGARDING LIABILITY FOR LOSS OF, OR DAMAGE TO GOODS 

  1. FreightPOP INC. will select only Motor Carriers that agree (1) to assume the liability of a Motor Carrier for full actual loss of Goods, subject to the provisions of the 49 U.S.C. 14706, up to a maximum liability of $100,000 per shipment. Motor Carriers must agree to process and pay cargo claims in accordance with and subject to 49 CFR § 370. The Motor Carriers’ cargo liability for any one shipment will not exceed $100,000.
  2. It is understood and agreed that FreightPOP INC. is not a carrier or freight forwarder, and FreightPOP INC. will not be held liable for loss, damage, or delay in the transportation of Goods unless such loss, damage, or delay is caused solely by the negligence or willful misconduct of FreightPOP INC. All cargo claims must be filed by Shipper directly with the responsible Motor Carrier within nine (9) months of the date of delivery or expected delivery of the Cargo. Any action at law regarding a cargo claim must be filed with the Motor Carrier within two (2) years and one (1) day of the date the Motor Carrier declines to pay any part of the cargo claim.
  3. Neither FreightPOP INC. nor the Motor Carriers will be liable for the following: (1) damage to Goods to the extent due to packaging, loading, unloading, blocking, bracing or securing of Goods (unless the Motor Carrier has provided loading or unloading services at Shipper’s request, in which case such Motor Carrier (but not FreightPOP INC.) may be liable for damage to Goods caused by such loading or unloading services); (2) inherent vice or defect in Goods transported, including, without limitation, rusting of metals, swelling of wood caused by humidity, moisture or condensation, or deterioration of perishable products; (3) act of God or the public enemy; or (4) an act or default of Shipper, consignor, consignee, or beneficial owner of Goods.
  4. In no event will FreightPOP INC. or the Motor Carrier be liable to Shipper for special, incidental, or consequential damages that relate to loss of, damage to, or delay of a shipment of Goods, unless Shipper has informed FreightPOP INC. or the Motor Carrier in written or electronic form, prior to or when tendering a shipment or series of shipments, of the potential nature, type and approximate value of such damages, and the Motor Carrier specifically agrees in written or electronic form to accept responsibility for such damages. In no event will FreightPOP INC. or the Motor Carrier be liable to Shipper for punitive or exemplary damages that relate to loss of, damage to, or delay of a shipment of Goods.
  5. Customer shall proceed with any claim for loss of, damage to, or delay in the transportation of Goods against any Motor Carrier by filing the claim directly with the applicable Motor Carrier or by commencing civil action or arbitration directly against the Motor Carrier within applicable time limits, and if requested by Shipper and agreed to by FreightPOP INC., FreightPOP INC. may reasonably assist, but not be liable for, the filing and processing of Customer’s claim with the Motor Carrier.
  6. If any consignee refuses to accept Goods tendered by the Motor Carrier engaged by FreightPOP INC. or if such Motor Carrier is unable to deliver Goods for any reason outside of its control, FreightPOP INC. will notify Customer of failed delivery of such failure and the reason therefore. Upon notification, Customer will have twenty-four (24) hours within which to decide whether to store or re-route Goods to an alternative destination or back to Shipper. If Customer advises and instructs FreightPOP INC. to stop movement of Goods and to hold Goods in transit, or Customer fails to provide timely instruction, at such point, the liability of the Motor Carrier engaged by FreightPOP INC. will become that of a warehouseman. In such event, FreightPOP INC. will advise the Motor Carrier to use ordinary care to keep Goods in a safe and suitable place for storage. Customer will be responsible for storage costs and other reasonable costs incurred by FreightPOP INC. for warehouseman services. If Customer gives FreightPOP INC. timely disposition instructions, FreightPOP INC. will communicate the same to Motor Carrier and will use any commercially reasonable steps to abide with such instructions. Customer will pay any additional transportation or other costs incurred in complying with Customer’s disposition instructions.

11. SURETY BOND

FreightPOP INC. will maintain a surety bond or trust fund agreement as required by the FMCSA and furnish Customer with proof upon request.

  1. FORCE MAJEURE

Neither FreightPOP INC. nor any Carrier will be liable to Customer for delay or failure to perform the Services during any time in which such performance is prevented by fire, explosion, act of God (including floods, hurricanes, tornadoes, earthquakes, severe weather conditions, and natural disasters); strike, lockout or labor shortage or disturbance; war, terrorism, embargo, quarantine, riot, civil disobedience, hijacking or robbery; congestion, derailment or service issues affecting the Carriers; closing or disruptions affecting highways, rail networks, ports, air traffic or other transportation systems; the acts of any Government Authority or customs inspection requirements; acts or omissions of Customer; or any other cause outside of the reasonable control of FreightPOP INC. or the Carrier. FreightPOP INC. will provide notice within a reasonable time to Customer of such delay or inability to perform.

 

  1. SEVERABILITY

In the event that any portion of these Conditions results in a violation of any law, or any provision is determined by a court of competent jurisdiction to be invalid or unenforceable, the Parties agree that such portion or provision will be severable and that the remaining provisions of these Conditions will continue in full force and effect. The representations and obligations of the Parties will survive the termination of these Conditions for any reason.

 

  1. NON-WAIVER

Delay or failure of either Party to insist upon performance of any of these Conditions, or to exercise any right or privilege herein, or the waiver of any breach of any of the Conditions, will not be construed as waiving any such terms, conditions, provisions, rights, or privileges, but the same will continue and remain in full force and effect as if no forbearance or waiver or delay had occurred. Consent or approval by a Party to any act requiring consent or approval will not be deemed to waive or render unnecessary consent or approval of any subsequent similar act. FreightPOP INC. and Customer hereby waive any and all rights and remedies provided for by Part B of Subtitle IV to Title 49 of the U.S. Code to the extent such rights and remedies conflict with the provisions of these Conditions. FreightPOP INC’s rights and remedies under these Conditions will be cumulative, and its pursuit of any such right or remedy will not preclude it from pursuing any other available right or remedy.

 

  1. APPLICABLE LAWS AND JURISDICTION

These Conditions will be deemed to have been drawn in accordance with the statutes and laws of the state of California and in the event of any disagreement or dispute, the laws of California will apply, without regard to its choice or conflict of law rules, and suit must be brought exclusively in California as each Party specifically submits to the exclusive personal jurisdiction of such courts for disputes involving these Conditions or the Services.

 

  1. LIMITATION OF ACTIONS

Other than Claims for loss, damage or delay to Goods or invoice disputes, any action against FreightPOP INC or Carriers, whether such Claim is founded in contract or tort, is waived unless commenced within two (2) years of the date the conduct giving rise to the Claim occurred.

 

Any action to recover for loss or damage to Goods is waived unless commenced (1) in the case of loss or damage occurring during over-the-road transportation, within two years of the date that all or any part of the Claim is denied by FreightPOP INC. or the motor Carrier, (2) in the case of loss or damage occurring during rail transportation, within one year of the date that all or any part of the Claim is denied by FreightPOP INC. or the rail Carrier, (3) in the case of loss or damage occurring during air or ocean transportation; within the time limit set forth in the air or ocean Bill of Lading or other terms and conditions governing such transportation, and (4) in the case of loss or damage occurring during Warehouse Services, no later than the earlier of: (i) nine months after date of delivery by FreightPOP INC. of the Goods to the outbound Carrier or (ii) nine months after Customer is notified that loss or damage to part or all of the Goods has occurred and (5) in the case of loss or damage related to any other source, within two years from the date the loss or damage occurred.

 

With respect to each individual request by Customer for Services, the rights and obligations arising under these Conditions will apply to FreightPOP INC. when performing the Services requested by Customer. In no event will Customer have any rights against any FreightPOP INC. other than the legal entity actually providing such Services. Carrier will seek recourse only against FreightPOP INC. that performed the Services for the applicable Goods. Nothing herein will impose any liability or obligation, whether to Customer or to any third party, on the part FreightPOP INC.

 

IN NO EVENT WILL FREIGHTPOP INC. BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, USE OR OPPORTUNITY, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND WHETHER OR NOT THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

THE SERVICES ARE PROVIDED “AS IS”, AND FREIGHTPOP INC. DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY OR CONDITION ARISING BY STATUTE, CUSTOM OR USAGE OF TRADE RELATED TO THE SERVICES PROVIDED HEREUNDER.

 

  1. INDEPENDENT CONTRACTOR

It is understood between FreightPOP INC. and Customer that FreightPOP INC. is not an agent for the Motor Carrier or Customer and will remain at all times an independent contractor. Customer does not exercise or retain any control or supervision over FreightPOP INC., its operations, employees, or the Motor Carriers.

 

  1. ENTIRE UNDERSTANDING & MODIFICATIONS

This Agreement, including all documents referenced herein, constitute the entire, fully integrated agreement intended by and between the parties and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements, and understandings, whether oral, written, expressed or implied, with respect to the subject matter hereof.