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Shipper Terms 1/15/10 (250164).DOC

Shipper Terms & Conditions

 

By using the Service, you are agreeing to be bound to the following Terms and Conditions.

 

A. Definitions

  1. "Service" means the software available via the Enterprise TMS website and API that allows the posting of freight shipments by shippers, brokers and freight forwarders as well as the ability to accept the shipments by carriers, brokers and freight forwarders.
  2. "API" means the Enterprise TMS Application Programming Interface, also known as Web Services, a mechanism for computers to directly access the Service without using the website.
  3. "You" or "you" means an individual user of the Service, except as otherwise noted herein, who is authorized on behalf of his or her employer to bind it to these Terms & Conditions.
  4. "FMCSA" means the Federal Motor Carrier Safety Administration.
  5. "Shipper" or "shipper" means a person or business entity entitled to provide instructions and descriptions about its shipment to the accepting carrier and simultaneously assuming full payment responsibility for the transportation charges.
  6. "Broker" or "broker" means a person or entity , other than a motor carrier or an employee or agent of a motor carrier, authorized by the FMCSA to arrange motor cargo transportation of freight for hire on behalf of a shipper, freight forwarder or others as defined in 49 USC 13102(2) and 49 CFR 371.2.
  7. "Freight Forwarder" or "freight forwarder" means a person or business holding itself out to the general public (other than as a pipeline, rail, motor, or water carrier) to provide transportation of property for compensation and in the ordinary course of its business - (a) assembles and consolidates, or provides for assembling and consolidating, shipments and performs or provides for break-bulk and distribution operations of the shipments; (b) assumes responsibility for the transportation from the place of receipt to the place of destination; and (c) uses for any part of the transportation a carrier subject to jurisdiction under this subtitle, as defined in 49 USC 13102(8).
  8. "Carrier" or "carrier" means a person or entity authorized by the FMCSA to transport freight for compensation as defined in 49 USC 13102 and 49 CFR 390.5.
  9. "Content" means description and/or terms and conditions of shipments of freight as posted on Enterprise TMS.
  10. "Private Network Provider" means a carrier, broker or freight forwarder with whom you or your employer currently have a valid and enforceable contractual relationship regarding the provision of transportation services.
  11. "Private Network Shipment" means a shipment tendered to a Private Network Provider.
  12. "Qualified Capacity Provider" means a carrier, broker or freight forwarder that is introduced to you via the Service with whom you or your employer do not have a current contractual relationship relating to the provision of transportation services.
  13. "Qualified Capacity Shipment" means a shipment tendered to a Qualified Capacity Provider.
  14. "Carrier Data" means information about the operating authority, insurance and safety rating of a carrier, broker or freight forwarder.

B. General Terms

  1. If you enter into a separate supplementary contractual arrangement with Enterprise TMS, that agreement will take precedence over any inconsistent provisions of these Terms and Conditions.
  2. You agree that the failure of Enterprise TMS to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision. You agree that the Terms and Conditions constitute the entire agreement between you and Enterprise TMS and governs your use of the Service, superseding any prior agreements, verbal or written, between you and Enterprise TMS (including, but not limited to, any prior versions of the Terms and Conditions).
  3. Violation of any of the Terms and Conditions may result in termination of your Service.
  4. Enterprise TMS reserves the right to refuse Service to anyone for any reason at any time.
  5. Enterprise TMS reserves the right to update and change the Terms and Conditions from time to time without notice. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms and Conditions. Continued use of the Service after any such changes shall constitute your express, irrevocable consent to such changes. You can review the most current version of the Terms and Conditions at any time at http://www.enterprisetms.com/terms/shipper.
  6. Enterprise TMS, in its sole discretion, has the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice for any reason at any time
  7. Enterprise TMS may delete your content from the Service upon cancellation or termination of Service for any reason. Content cannot be recovered once it is deleted.
  8. You expressly understand and agree that Enterprise TMS shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses (even if Enterprise TMS has been advised of the possibility of such damages) resulting from the use or inability to use the Service; the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; unauthorized access to or alteration of your transmissions or data; statements or conduct of any third party of the Service; any modification, price change, suspension or termination of the Service; or any other matter relating to the Service.
  9. Your use of the Service is at your sole risk. Enterprise TMS, the information contained on its website, the Content, Carrier Data as well as any Service offered through Enterprise TMS are made "as is," "as available" and with all inaccuracies. Enterprise TMS makes no warranty of any kind, expressed or implied, including those of merchantability or fitness for a particular purpose, or arising from a course of dealing, usage or trade practice. Enterprise TMS makes no warranties or representations regarding the accuracy or completeness of the information. Enterprise TMS does not warrant that the service will meet your specific requirements; the results that may be obtained from the use of the Service will be uninterrupted, timely, secure or error-free; the results that may be obtained from the use of the Service will be accurate or reliable; the quality of any products, services, information or other material purchased or obtained by you through the Service will meet your expectations; or any errors in the Service will be correted. You agree that Enterprise TMS is not responsible for any charges incurred for any losses, damages, fines, claims, theft, legal expenses or pentalties of any kind related to your use of the Service, including but not limited to transportation of your freight or charges related to trucks ordered but not used.
  10. You agree not to modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, Enterprise TMS or any other Enterprise TMS service. You may not use the Service for any illegal or unauthorized purpose. You agree not to upload, post, host or transmit unsolicited emails, text messages or "spam" messages. You agree not to knowingly transmit any worm or virus or code of a destructive nature which interferes in any way with the Service.
  11. You agree not to reproduce, copy, sell, resell or exploit any portion of the Service (including, but not limited to, the HTML/CSS or visual design elements of the website), or use the Service or access the Service without the express written permission of Enterprise TMS. Violation of this paragraph may result in civil and/or criminal penalties and fines as well as liability for attorney fees. All rights reserved. Portions of the Service may be patented and/or licensed under U.S. Patent No. 7,430,517 B1.
  12. You or your employer must be a Shipper, Broker or Freight Forwarder.
  13. You must be 18 years old or older to use the Service. You must provide your full legal name, a valid email address and any other information requested in order to complete the signup process.
  14. You agree that you are responsible for maintaining and protecting the security of your account and password. You further agree that Enterprise TMS is not liable for any loss or damage resulting from your failure to comply with this security obligation. You agree that your login may be used by only one person. A single login shared by multiple people is not permitted.
  15. Enterprise TMS does not pre-screen Content, but Enterprise TMS has the right (but not the obligation) in its sole discretion to refuse or remove any Content that is posted via the Service. We may, but have no obligation to, remove Content and accounts containing content that we determine in our sole discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party's intellectual property rights or these Terms and Conditions.
  16. You agree that Enterprise TMS is not a carrier or an agent, employee, joint venturer or partner of any carrier. You agree that Enterprise TMS is not your agent, employee, joint venturer, partner or fiduciary. It is further understood and agreed that all drivers of motor vehicles and persons employed in connection with the transportation of goods under these Terms and Conditions are not subject to the direction, control or supervision of Enterprise TMS. Furthermore, Carrier shall have the sole and exclusive care, custody and control of the shipments made available from Shipper from the time Carrier picks up a shipment until delivery to its final destination. You further understand and agree that neither Enterprise TMS nor you have any intent or understanding to carry out a joint enterprise for profit or any intent or understanding to share in any profits or losses of our respective businesses.
  17. All shipments offered to Carriers or Freight Forwarders through the use of the Service will be subject to your written and/or oral agreement with that carrier including but not limited to terms and conditions on bills of lading issued by you, the Carrier or Freight Forwarder. You warrant that the bill of lading properly names Carrier as the "carrier" for the load and not "Enterprise TMS" or Enterprise TMS's employees. You further warrant that you will strike through and correct any erroneous designation of any other person as "carrier" (including Enterprise TMS) on the bill of lading. Any terms, conditions or other instructions written or printed on bills of lading or other receipts shall have no effect against Enterprise TMS, unless specifically agreed to in writing by Enterprise TMS.
  18. You, not Enterprise TMS, are responsible for providing timely and accurate information on each shipment to the carrier, including but not limited to pickup and delivery locations, time and/or temperature requirements, dimensions including weight, special handling or equipment requirements or instructions. It is further understood and agreed that any handling or equipment requirements or instructions, including periodic check-calls by drivers, or fines (for such things as late delivery), are not requirements or instructions of Enterprise TMS, and in no way constitute, represent or reflect any control by Enterprise TMS over, or the right to control by Enterprise TMS of, the manner and means in which goods are transported. It is further understood and agreed that Enterprise TMS does not provide any equipment or personnel for completion of any of the transportation services provided hereunder.

 

  1. You agree that bills of lading are NON-NEGOTIABLE and are to be prepared by you and shall be deemed, conclusively, to have been prepared by you.
  2. You agree that you are responsible for and warrant your compliance with all applicable laws, rules and regulations including but not limited to customs laws, import and export laws and governmental regulation of any country to, from, through or over which the shipment may be carried. You further warrant that you are registered and in compliance with the security plan and training requirements, and any amendments related thereto, related to hazardous materials, 49 C.F.R. #172.701-704 and 49 C.F.R. #172.800-804. You further warrant that you will immediately advise Enterprise TMS in the event that your registration and/or compliance with these regulations expire or are terminated. You agree to furnish such information and documentation as necessary to establish your compliance with such laws, rules and regulations. Enterprise TMS assumes no liability to you or to any other person for any loss or expense due to your failure to comply with this provision. Any individual or entity acting on behalf of you in scheduling shipments hereunder warrants that it has the right to act on behalf of you and the right to legally bind you. You agree to defend, indemnify and hold harmless Enterprise TMS for any and all claims or damages incurred as a result of your failure to comply with the provisions of this paragraph.
  3. Enterprise TMS agrees to keep your rates confidential. "Your rates" includes LTL contract rates, truckload contract rates and spot quotes. Your rates for each service provider are only revealed to you, the specific service provider and Enterprise TMS. Your rates are not revealed to any other carriers, shippers, brokers, third parties or any companies affiliated with Enterprise TMS or Enterprise TMS's parent company.
  4. Enterprise TMS may share with third parties certain pieces of aggregated, non-customer-specific information, such as the number of shipments in a particular lane on a given day or the average rate in a particular lane during a given quarter. Such information will not reveal any specifics about you or your company's shipments, including specific origins, destinations, providers or rates.
  5. Unless otherwise marked, transit times are not guaranteed. When marked, guaranteed service applies only to the transit times from terminal to terminal. Transit days start with the first business day after pickup. Transit times do not include the day of pickup, weekends or holidays. The pickup date is not guaranteed.
  6. The General Rules Tariffs, set forth by the Carriers, will in every instance take precedence in all legal proceedings and when applicable will take precendence over these Terms and Conditions.
  7. You shall defend, indemnify and hold Enterprise TMS, its customers and users of the Service harmless upon assertion of any claims, actions, damages, demands and/or lawsuits, including but not limited to legal fees, costs of defense as they accrue and costs of enforcement hereof, arising out of shipper, broker and/or freight forwarder posting of freight (Content) and a carrier's transportation of freight resulting from participation in the Service, including cargo loss and damage, theft, delay, damage to property, personal injury or death based upon allegations of negligent selection of the carrier, or upon any other legal theory, or violation of any applicable harzardous materials laws or regulations.
  8. The rights and obligations of the parties shall survive termination of this agreement for any reason.
  9. You and your employer acknowledge that Carrier Data provided to you through the service is offered "as is" and reflects only data received from the carrier and DAT Solutions. Enterprise TMS makes no representations or warranties with respect to the Carrier Data and expressly states that the use of Carrier Data is entirely at your own risk. Enterprise TMS and DAT Solutions shall not be liable for any direct, special, indirect, consequential or punitive damages of any kind, including, but not limited to, lost profits arising out of your use of, or reliance upon, Carrier Data.
  10. These Terms and Conditions are governed by and construed in accordance with the laws of the State of Missouri, without reference to its conflict of laws rules. You and your employees hereby expressly submit and consent to exclusive personal jurisdiction and exclusive venue of the federal and state courts of competent jurisdiction in the State of Missouri. Any litigation shall be filed in the Circuit Court of Jackson County, Missouri or in the United States District Court for the Western District of Missouri, Western Division.
  11. In the event your failure to duly carry out the terms and conditions of this Agreement causes damage to Enterprise TMS, you agree that Enterprise TMS shall receive from you or your employer compensation for actual damages, including reasonable attorney fees and costs.

C. Private Network Terms

These terms apply to Private Network Providers and Private Network Shipments.

  1. During use of the Service, you may enter into correspondence with, purchase services from or participate in transactions with third parties through the Service. Any such activity, and any terms, conditions, warranties or presentations associated with such activity, is solely between you and the applicable third party. You agree that Enterprise TMS shall have no liability, obligation or responsibility for any such correspondence or purchase.
  2. You acknowledge that Enterprise TMS is a neutral third party and is not responsible for providing or guaranteeing insurance coverage of your freight.
  3. You agree that Enterprise TMS is not responsible for maintaining contracts between you and your Private Network Carriers. You are advised to execute written contracts with Private Network Providers prior to hiring them to transport property.
  4. Contract rates for your Private Network Providers are estimated. Enterprise TMS is not responsible for inaccurate rates.

D. Qualified Capacity Terms

These terms apply to Qualified Capacity Providers and Qualified Capacity Shipments.

  1. Each quote from a Qualified Capacity Provider includes a fee of 2-6% for services including but not limited to shipment matching and carrier screening.
  2. Shipments tendered to Qualified Capacity Providers must be tendered via the Service. You agree that you will not tender shipments to Qualified Capacity Providers outside of the Service.
  3. You understand that you will not have a direct contractual relationship with a Qualified Capacity Provider. You will not require the Qualified Capacity Provider to sign a carrier or broker agreement with you or your employer. Your relationship with a Qualified Capacity Provider is through your relationship with Enterprise TMS.
  4. If you do not complete all the documents required for carriage, or if the documents which you submit are not appropriate for the services, origin or destination requested, you hereby instruct Enterprise TMS, where permitted by law, to complete, correct or replace the documents for you at your expense. However, Enterprise TMS is not obligated to do so. If a substitute form of bill of lading is needed to complete delivery of this shipment and Enterprise TMS completes that document, the terms of this bill of lading will govern. Enterprise TMS is not liable to you or to any other person for any actions taken or not taken on your behalf under this provision.
  5. Additional fees may apply for charges including but not limited to, tractor detention, trailer detention and driver assistance. Once Enterprise TMS has contracted with a carrier to move a truckload shipment, the scheduled load must be tendered to the carrier as requested on the bill of lading at the agreed upon price or an equipment not used (EON) fee will be assessed.
  6. You will be invoiced by Enterprise TMS. You will not be invoiced by the Qualified Capacity Carrier.
  7. Your invoice will be provided to you via the Service. You will not receive a paper invoice.
  8. You are subject to credit approval. Upon credit approval, all charges are payable in US Dollars and are due in 30 days. Any payment which is past due shall be subject to an additional charge at the rate of 1.5% per month of the balance due, or the highest rate of interest permitted by applicable law, whichever is less. Overpayments do not accrue interest and are subject to Missouri State Law, including the Missouri Unclaimed Property Act. In the event Enterprise TMS retains an attorney or collection agency to collect unpaid charges or for the enforcement of these Terms and Conditions, all unpaid charges will be subject to a late payment penalty of 33% and you shall also be liable for all attorneys and collection agency fees incurred, together with related costs and expenses. All shippers, consignors, consignees, freight forwarders or freight brokers are jointly and severally liable for the freight charges owed to Enterprise TMS relating to a Qualified Capacity shipment and the Enterprise TMS holds a warehouseman's general lien on all tangible personal property for any outstanding balances owed to the Company.
  9. Enterprise TMS reserves the right to amend or adjust the original quoted amount or re-invoice you if the original quoted amount was based upon incorrect information received at the time of the original quote, if additional services by the Carrier were required, or as otherwise necessary to perform the pickup, transportation and delivery functions therein.
  10. You are permitted thirty (30) business days from the date of the invoice to dispute any invoiced charges. If Enterprise TMS does not receive a dispute within the allowable thirty (30) business days, the disputed item will be denied by Enterprise TMS.
  11. Enterprise TMS will process claims in accordance with 49 C.F.R. 370. All claims should be submitted immediately to Enterprise TMS to help ensure timely resolution. Enterprise TMS will use commercially reasonable efforts to assist and cooperate with you to investigate and process any freight loss or damage claims and any claim for damage to your property occurring in the course of the transportation services rendered to you. The liability for any cargo damage, loss, or theft from any cause shall be determined under the Carmack Amendment, 49 U.S.C. 14706. Enterprise TMS will use the individual carrier's governing General Rules Tariff which determines the standard liability cargo insurance coverage offered by all carriers. Those Tariffs can be viewed at Enterprise TMS's corporate offices. If the shipment contains freight with a predetermined exception value, as determined by the selected carrier, the maximum exception liability will override the otherwise standard liability coverage. The maximum amount that you will receive on a claim will be that which is recoverable under the respective transportation tariffs. Enterprise TMS will not be responsible in any way for claims arising out of your negligence, Carrier's negligence, or the negligence of any third party. All claims must be submitted to Enterprise TMS within 30 days after delivery. Claims for damages that are not readily apparent ("concealed damage") must be submitted to Enterprise TMS within 3 days after delivery. The filing of a claim does not relieve the responsible party for payment of freight charges. Freight payment is necessary in order to process a claim. You may not offset freight or other charges owed to Enterprise TMS against claims for any loss, damage, mis-delivery or non-delivery. Enterprise TMS has a lien on funds recovered through the processing of damage claims and reserves the right to apply recovery amounts to open past due invoices on account. In no case will the maximum cargo liability for new goods be greater than $100,000 for a Truckload shipment or $10 per pound for an LTL shipment. In no case will the maximum cargo liability for used or resold goods be more than $0.10 per pound for any shipment.
  12. Enterprise TMS is licensed by the Department of Transportation (DOT), Federal Motor Carrier Safety Administration(FMCSA) and/or other government agencies as required by law.

E. Service Pricing and Monthly Recurring Fees

  1. Fees for the Service are billed in advance on a monthly basis and are non-refundable. You will be billed for your first month immediately upon subscribing. Payment must be received before Service is available.
  2. There will be no credits or refunds for partial months of Service or upgrade/downgrade refunds. If you cancel the Service before the end of your current paid up month, your cancellation will take place immediately and you will not be charged again.
  3. Prices of all Services, including but not limited to monthly recurring charges for the Service, are subject to change upon 30 days notice from us. Such notice may be provided to you at any time by posting the change to the Service or by Email.
  4. All fees are exclusive of taxes, levies or duties of any kind imposed by taxing authorities, and you agree that you are responsible for all such taxes, levies or duties.