Rowl United

Terms & conditions

 ROWL UNITED TERMS & CONDITIONS 

Rowl United is a group of affiliates which provide separate services and which maintain separate corporate identities, herein as “Company”. Unified Logistics Solutions, LLC (“Broker”) is a licensed broker. The Brokerage Terms and Conditions herein shall apply when Company provides services under its brokerage authority. Rowl Trucking, LLC transports commercial goods (“Carrier”). The Motor Carrier Terms and Conditions herein shall apply. FlexiPlus Services, LLC provides services related to flexitanks, including installation, repair, maintenance and storage (“FlexiPlus”). The Repair Services Terms & Conditions shall apply to services related to flexitanks, save and except physical transportation of same. 

BROKERAGE TERMS & CONDITIONS 

Unified Logistics Solutions, LLC 

1. Parties. The term “Customer” means the person or entity desiring to have the goods transported, sending the goods, or otherwise liable as a shipper under law. This definition includes the exporter, importer, sender, receiver, owner, consignor, consignee, transferor, transferee, forwarder, broker and/or any other agents or representatives of Customer (not to include Broker). It is the responsibility of all such parties to provide notice and copies of these Terms and Conditions of Brokerage (“Terms and Conditions”) to each other. The term “Broker” means Unified Logistics Solutions, LLC operating under MC 1475871, Broker is not acting, and does not act, as either a motor carrier or a common carrier within the meaning of USC Title 49. Under no circumstances shall Broker held liable in the capacity of a motor carrier. Customer or third party’s insertion of Broker as the carrier of record in any bill of lading, delivery order, or other document will not alter or affect Broker’s status as a freight Broker. The carrier(s) actually transporting the freight at issue shall be solely responsible in the capacity of a motor carrier; Customer and its agents shall not file claims or suit against Broker for loss, damage, or delay to cargo. The term “Carrier” shall refer solely to the motor carrier providing the actual transport. 

2. General. These Terms and Conditions are applicable to the services performed by Broker undertaken on the Customer’s behalf. These Terms and Conditions supersede all previous conditions of transportation and other prior statements concerning the rates and conditions of Broker’s services. These Terms and Conditions control in the event of any discrepancy or conflict between these Terms and Conditions and those of any Customer, unless changes have been made by obtaining prior written approval by an Officer of Broker. Broker reserves the right from time to time to modify, amend or supplement these Terms and Conditions without notice. Copies of Broker’s most recent terms and conditions are available upon request. Broker’s terms and conditions in effect on the date of shipment shall apply. In the event that Broker and the Customer have entered into a signed, written contract containing terms and conditions different than those set forth in these Terms and Conditions, the signed, written contract will control to the extent that such terms conflict with these Terms and Conditions. These Terms and Conditions apply to Broker, not the Carrier actually providing the transportation services. In the event one of the Broker’s affiliates actually transports a load, such transportation shall be subject to the affiliate’s terms and conditions, which are available upon request. 

3. Service. Broker will arrange for transportation of Customer’s freight pursuant to these Terms and Conditions. Broker’s responsibility will be limited to arranging for, but not actually performing, transportation of Customer’s freight. Broker does not exercise or retain any control or supervision over any carrier, its operations, employees, or contractors. Broker reserves the right, in its sole discretion, to refuse any shipment at any time. The relationship between Broker and Customer is that of one independent contractor with another, and nothing herein is intended to create a joint venture, partnership, agency, or any employment relationship. Broker reserves the right to refer shipments to, and Customer approves such use of, Broker’s affiliates to provide transportation services for any shipment. 

4. Rates and Fees. Quotes are based on information provided by the Customer. Unless indicated, the price excludes charges for detention time, per diem and additional stops. Customer will be liable for all additional charges incurred relating to the transportation of Customer’s freight. The quoted rate depends on the weight, dimension and released value of the property described. Any changes to the actual released value, dimension, description or weight of the load may result in revisions to the quoted price. Unless otherwise indicated by Customer in writing and confirmed by an Officer of Broker, Broker’s rates are based on a limited released value of $100,000 and Broker will not be responsible for loss or damage in excess of $100,000. 

5. Payments. Broker or Broker’s affiliate will invoice Customer for Broker’s services in accordance with the rates, charges and provisions negotiated and agreed to between Customer and Broker. Customer agrees to pay Broker’s invoice within 30 days of the invoice date without deduction or setoff. As a convenience to Customer, invoices may be processed by Broker’s affiliated entity and such administrative support in issuing invoices will not alter Broker’s role in connection with a particular shipment, as the act of invoicing is a purely administrative function performed independent of arranging for transportation services. In the event of a loss, Customer’s claim and any remedies will be directed to, and the sole responsibility of, the actual Carrier performing transportation services for the particular shipment at issue, to the extent of any claim for loss, damage or delay. 

6. Third Party Billing & Freight Charge Liability. A shipment in which charges are to be paid by a party other than the Customer, will be accepted provided recourse against the Customer, shipper, consignor, and/or consignee is preserved, regardless of any other representation on the Bill of Lading or other shipping document (including, but not limited to, Section 7 and/or prepaid designations). The Customer guarantees to pay the charges if the third party fails to do so in the time allotted under the applicable credit regulations. 

7. Liability for Loss, Damage, or Delay. Broker will assist with processing of claims on behalf of its Customers. However, BROKER IS NOT LIABLE FOR DELAY TO CARGO OR LOSS OR DAMAGE TO CARGO, UNLESS THE LOSS OR DAMAGE IS CAUSED BY THE SOLE NEGLIGENCE OR FAULT OF BROKER. THIS RELEASE SHALL INCLUDE SITUATIONS WHERE BROKER IS CONCURRENTLY NEGLIGENT OR AT FAULT. IN NO EVENT WILL BROKER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES RELATING TO LOSS OF PROFITS, WHETHER OR NOT SUCH DAMAGES WERE REASONABLY FORESEEABLE. The motor carrier actually performing the transportation is responsible for their own conduct. BROKER SHALL BE ENTITLED TO ALL LIMITATIONS OF LIABILITY, RIGHTS, AND PROTECTIONS AVAILABLE TO THE CARRIER, INCLUDING, BUT NOT LIMITED TO THE TERMS IN THE BILL OF LADING, TERMS AND CONDITIONS, RULES TARIFF, AND OTHER DOCUMENTS. BROKER WILL NOT BE LIABLE FOR PERSONAL INJURY OR DEATH OR PROPERTY DAMAGE ARISING FROM, RELATED TO, OR CONNECTED WITH THE CONDUCT OF THE MOTOR CARRIER. 

8. Force Majeure. Broker will not be liable for failure to perform any of its obligations under these Terms and Conditions during any time in which such performance is prevented by circumstances beyond Broker’s control including but not limited to an act of God, fire, flood, or other natural disaster, war, embargo, riot, strike, lock-out, labor disturbance, civil disobedience, or the intervention of any government authority, or any other cause outside of the reasonable control of Broker. 

9. Disclaimer of Warranties. Except as expressly provided in these Terms and Conditions, Broker makes no warranties, express or implied, including without limitation, warranties of merchantability or fitness for a particular purpose, with regard to shipments, warehoused goods, items in transit or deliveries or with regard to the information provided on the website or services related to transactions conducted on the website. Broker cannot guarantee delivery by any specific time or date. 

10. Notice of Claims. 

a. Freight Claims. Customer must give Broker written notice of any claims for cargo loss or damage within 180 days from the date of such loss, shortage or damage, which for purposes of these Terms and Conditions will be the delivery date or, in the event of non-delivery, the scheduled delivery date. Customer must file any civil action against Broker in a court of law not later than 2 years from the date of delivery or, if delivery was not completed, the expected date of delivery. 

b. Payment of Claims by Broker. If payment of claim is made by Broker to Customer, Customer automatically assigns its rights and interest in the claim to Broker, and agrees to execute any documents that may be necessary in connection with such assignment. All damage claims will be handled directly with the Carrier or its insurance representatives. Notwithstanding the foregoing, this provision does not obligate Broker to pay any claim. 

 

    1. c. All Other Claims. Customer shall notify Broker of all known material details within 91 days of receiving notice of any facts giving rise to a claim other than cargo loss or damage claims, or else such claims are waived. Customer shall update Broker promptly thereafter as more information becomes available. Civil action, or arbitration, if any, must be commenced within 2 years from the date of the event giving rise to the claim. 

 

    1. 11. Customer Responsibilities. a. Customer must properly mark, pack and label cargo so it will safely endure ordinary handling in transit. By tendering a shipment to the Carrier(s), Customer certifies that the shipment is sufficiently packaged to withstand the normal hazards of truck transportation. 

    1. b. Customer shall be responsible to Broker for timely and accurate delivery instructions and description of the cargo, including any high value, special value, special handling (including tarping or strapping instructions) or security requirements, for any shipment. Any article susceptible to damage by ordinary handling must be adequately protected and packaged and marked in such a way as to alert the Carrier(s) of the possibility of damage from ordinary handling and must bear appropriate labels. 

    1. c. Customer shall provide the Carrier(s) with access to the facilities necessary to load or unload the tendered shipments. Customer is solely responsible for maintaining the loading and unloading facilities in a good and safe condition, and in compliance with all applicable laws, codes and regulations. CUSTOMER HEREBY WAIVES AND RELEASES BROKER FROM ANY LIABILITY FOR ANY LOSS OR DAMAGE TO CUSTOMER’S FACILITIES OR TO CUSTOMER’S PERSONAL PROPERTY LOCATED ON SUCH FACILITIES. Broker will not be responsible for stolen, lost, or damaged goods, containers, chassis, or other equipment after such items have been delivered. Customer will reimburse Broker for any costs Broker pays or incurs with regard to theft, loss, or other damage to goods, containers, chassis, or other equipment occurring after delivery of the shipment. 

    1. d. Customer agrees that it is solely responsible for providing the weight and dimensions of any shipment and guarantees that the weights and dimensions given to Broker, and its employees, will be true and accurate and accepts all responsibility and liability for any actions and operations performed based on the weights and dimensions provided by Broker or Broker’s client. 

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12. Shipments not Accepted. Customer will not tender shipments for transportation of explosives, shipments requiring “protective security service or armed guard surveillance,” human remains, precious metals, currency, object d’art, collection, antiques or precious stones, jewelry, manufactured tobacco products, ammunition, or any items of unusual value. 

13. HAZARDOUS MATERIALS. Customer shall comply with all applicable laws and regulations relating to the transportation of hazardous materials as defined in 49 CFR §172.800, §173, and §397 et seq. to the extent that any shipments constitute hazardous materials. Customer is obligated to inform Broker immediately if any such shipments constitute hazardous materials. CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS BROKER AND ITS OFFICERS, EMPLOYEES, AGENTS AND INSURERS, AGAINST ALL CLAIMS, LIABILITIES, LOSSES, FINES, REASONABLE ATTORNEY FEES AND OTHER EXPENSES ARISING OUT OF OR RELATED TO THE RELEASE OF ANY HAZARDOUS MATERIAL, INCLUDING WITHOUT LIMITATION, FINES OR EXPENSES RELATED TO THE REMOVAL OR TREATMENT OF HAZARDOUS MATERIAL OR OTHER REMEDIAL ACTION PERTAINING TO THE HAZARDOUS MATERIAL UNDER FEDERAL OR STATE LAW, IF CUSTOMER FAILS TO PROVIDE ADVANCED NOTICE PRIOR TO TENDERING HAZARDOUS MATERIAL TO BROKER; THE CONTACT, EXPOSURE OR RELEASE RESULTED FROM THE IMPROPER PACKAGING OR LOADING OR OTHER ACTS OR OMISSIONS OF THE CUSTOMER, ITS EMPLOYEES OR AGENTS; AND THE CONTACT, EXPOSURE OR RELEASE OCCURRED SUBSEQUENT TO THE TRANSPORT OF THE HAZARDOUS MATERIAL BY BROKER OR THE CARRIERS. 

14. Surety Bond. Broker will maintain a surety bond or trust fund agreement as required by the Federal Motor Carrier Safety Administration and furnish Customer with proof upon request. 

15. Default. Both Broker and Customer will discuss any perceived deficiency in performance and will promptly endeavor to resolve all disputes. However, if either party materially fails to perform its duties under these Terms and Conditions, the party claiming default may terminate its duties upon written notice to the other party. Customer shall be responsible to pay Broker for any services performed prior to the termination of duties and for shipments not yet completed and/or not yet invoiced to Customer. 

16. Attorneys’ Fees. In the event any litigation arises from breach of these Terms and Conditions or to collect for the services provided under these Terms and Conditions, Broker will be entitled to recover all reasonable costs incurred including court costs, attorney fees, and all other related expenses incurred in such litigation. 

17. Severability. If any provision of these Terms and Conditions is invalid for any reason whatsoever, these Terms and Conditions will be void only as to such provision, and the remaining terms and conditions will remain binding between the parties. Any provision voided will be replaced with provisions which are as close to Broker and Customer’s original intent as permitted under applicable law. 

18. Non-Waiver. The failure or refusal of either party to insist upon the strict performance of any provision of these Terms and Conditions or to exercise any right in any one or more instances or circumstances will not be construed as a waiver or relinquishment of such provision or right, nor will such failure or refusal be deemed a customary practice contrary to such provision or right. 

19. Venue and Jurisdiction. These Terms and Conditions shall be subject to and governed by the laws of the State of Texas, without regard to choice-of-law principles and irrespective of the fact that one or more of the parties may be or may become a resident of a different state. Any and all claims or disputes arising out of or under this Agreement shall be filed in the appropriate county, state and federal courts located within Harris County, Texas. Customer hereby waives any claims or objections to personal jurisdiction and/or that such courts will be improper or inconvenient forums. 

 

    1. II. MOTOR CARRIER TERMS & CONDITIONS 

Rowl Trucking, LLC 

The term “Shipper” means the person(s) or entity(ies) desiring to have the goods transported, sending the goods, or otherwise liable as a shipper under law. This definition includes the exporter, importer, sender, receiver, owner, consignor, consignee, forwarder, broker, transferor, or transferee of the shipments, or any other agents or representatives of Shipper. It is the responsibility of all such parties to provide notice and copies of these Terms and Conditions to each other. The term “Consignee” shall mean the person or party to whom the freight is to be delivered. 

The term “Carrier” refers to ROWL TRUCKING, LLC of Harris County, TX, MC 781726 

Carrier reserves the right to modify, amend, and supplement these Terms and Conditions (also known and referred to as Rules Tariff, Rules Circular, Rules, Tariff, Classification, and similar references) from time to time without notice. 

A. General Terms 

1. Application. Each provision of these Terms and Conditions shall apply to any transportation services as a motor carrier provided by Carrier to Carrier’s customers and Shipper, regardless of the origin or destination, including interstate or intrastate shipments, unless expressly waived in a signed, written agreement. The terms and conditions herein shall apply to shipments exempt from economic regulation as well as shipments subject to the jurisdiction of the FMCSA. IN NO EVENT SHALL CARRIER’S LIABILITY FOR CARGO LOSS OR DAMAGE EXCEED THE LESSER OF THOSE SET OUT IN THESE TERMS AND CONDITIONS OR THE MAXIMUM SET FORTH IN ANY THROUGH BILL OF LADING OR OTHERWISE AGREED TO BETWEEN THE SHIPPER AND THE PARTY WHICH RETAINS CARRIER’S SERVICES. If there is any discrepancy or conflict between these terms and conditions and any terms contained in the bill of lading (including those executed by Carrier’s personnel and contractors), Shipper’s terms and conditions, or any other document, the terms and conditions herein shall control, unless changes have been made by obtaining written approval by an officer of Carrier prior to Carrier performing the transportation. 

2. Bills of Lading. Carrier’s Terms and Conditions in effect on the date the shipment is transported will apply notwithstanding the use by Shipper of any other bill of lading or shipping document. Drivers are not authorized to bind Carrier to non-conforming bills of lading and execute bills of lading with alternative terms and conditions as receipts for the shipment only. Consignee’s receipt and/or signature of the Bill of Lading without notation of damages shall be dispositive evidence that the cargo was delivered in good condition. 

 

    1. B. Shipments 

1. Compliance with Laws and Regulations. Shipper shall ensure that Carrier has all the information and documentation necessary to comply with the laws and regulations of any country in, through, or which the shipment will be transported. 

2. Special Permits. When permits are required for the transportation of over-size and/or overweight loads, the Shipper of the freight shall procure and furnish such permits, or shall request, in writing, Carrier to secure them and costs will be billed to Shipper. 

3. Steamship Line and Third-Party Equipment. Use of steamship line or third-party equipment (chassis, container, flat racks, ISO tanks, etc.) will be subject to the steamship line or third party’s equipment interchange agreement, including allowances for free time, per diem charges, chassis splits, maintenance and repair, and all other charges incurred. Shipper will be billed for all charges plus an additional administrative charge. Shipper shall pay all valid charges without delay. 

4. Chassis Splits. When container chassis is not located at the same location as the container to be transported, chassis split charges may be assessed. 

5. Shipper Load and Count. All shipments will be loaded by the consignor and unloaded by Consignee. Where the driver was either not present or was not allowed to observe the loading or unloading, omission of shipper load and count (or “SLC” notation) on the bills of lading shall not result in a presumption of Carrier’s liability for shortage or damage. 

6. Packing and Packaging – Shortage. Carrier will not be responsible for shortage on shipments which are banded, strapped, netted, shrink-wrapped or otherwise secured to bins, pallets, platforms or skids. Carrier will only be responsible for the number of bins, pallets, platforms or skids on such shipments to the extent that such units can be reasonable counted. Carrier will not be liable for damaged goods not clearly marked fragile or glass. Carrier shall not be liable for shortage or damage to sealed shipments. 

7. Tarps and securement. Tarps shall not be provided unless requested by Shipper in writing and Carrier agrees to provide tarps in writing. Rates do not include tarps or other covers. When tarps or other types of covering are provided, additional charges will be assessed. Carrier shall not be liable for water damage nor any other damage that could have been prevented by use of tarp or covering, unless Shipper requested the appropriate tarp or covering in writing and Carrier agreed to provide such tarp or covering in writing. 

Shipper is required to provide all securement instructions in writing. Unless Shipper provides securement instructions, Carrier shall secure cargo as assessed by Carrier’s driver, and Shipper’s release of the cargo from Shipper’s facility/site shall serve as Shipper’s approval that the cargo is properly and adequately secured. Carrier shall not be liable for Shipper’s failure to provide securement instructions in writing, and Carrier shall not be liable for the manner cargo is secured at Shipper’s facility/site. If Shipper is not satisfied with the manner of securement, Shipper shall provide instructions to Carrier’s driver and confirm those instructions to Carrier immediately via email. After Shipper provides instructions to Carrier’s driver, if Shipper is still not satisfied with securement of the cargo, Shipper shall instruct the driver to remain at Shipper’s facility/site, and Shipper shall contact Carrier immediately via email to resolve the securement issue. 

8. Crated or Sealed Shipments. Carrier will not be responsible for packing, sealing, or crating a shipment or securing the goods within the crate. Carrier will not be liable for damages of any kind caused by improper packing, sealing, or crating of shipments by Shipper or another third-party or improper securement of the goods within a crate by Shipper or another third-party. SHIPPER SHALL INDEMNIFY, DEFEND, AND HOLD CARRIER HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DEMANDS, OR CAUSES OF ACTION WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, ALL COSTS, EXPENSES, AND ATTORNEYS’ FEES) ARISING OUT OF OR IN ANY WAY RELATED TO THE IMPROPER PACKING, SEALING, OR CRATING OF A SHIPMENT BY SHIPPER OR A THIRD-PARTY OR THE IMPROPER SECUREMENT OF THE GOODS WITHIN A CRATE. THIS INDEMNIFICATION, DEFENSE, AND HOLD HARMLESS OBLIGATION SHALL APPLY WHETHER DUE TO THE SOLE OR CONCURRENT FAULT OF SHIPPER OR A THIRD PARTY. 

9. Shipments Subject to re-weight/re-measurement. Shipper shall provide weight and measurement for all shipments. Advance written notification of overweight or overdimensional shipments is required. If the weight or measurements of the goods as delivered are different from Shipper’s representations, or if pick-up or delivery time or location is changed by Shipper, Carrier will not be responsible for fines, permit fees, or penalties assessed by any agency. Any fines or expenses resulting from overweight shipments arising from Shipper’s failure to provide accurate weight and measurements, in addition to any permit fees, will be included in the invoice and charges to be paid for the shipment. Additionally, Carrier’s rates, charges, and fees are subject to change and will be included in the invoice and charges to be paid to Carrier. Shipper shall at all times have sole responsibility to ensure shipments comply with the terms of the International Convention for the Safety of Life at Sea (“SOLAS”), as applicable. 

10. Loading/Unloading. Shipper and Consignee shall be responsible for loading and unloading all shipments at Shipper’s and Consignee’s facilities. Rates do not include loading or unloading by Carrier personnel. 

11. Site Conditions. Suitable access and ground conditions on access roads into site, or on the site itself and all work areas are to be provided by the Shipper and/or Consignee at no cost to Carrier. Shipper and/or Consignee shall provide stable ground for delivery and will advise Carrier driver if any area of the receiving facility is not suitable for drop and delivery. In no event shall Carrier be liable or responsible for an loss or damage resulting from failure of the Shipper and/or Consignee to comply with the obligations of this section. Any damages incurred to property or equipment (including Carrier equipment) as a result of the foregoing will be billing accordingly. 

12. Attempted Pickup and Delivery. When Carrier is requested to dispatch a vehicle to a point designated by the Shipper, and the vehicle is furnished but not used, an attempted pickup charge and fuel surcharge will be assessed. If a shipment is rejected in whole or in part by Consignee, Shipper will be responsible for all freight charges as though the shipment had been accepted by Consignee. In addition, the rejected shipment may be returned to the point of origin or other location designated by Shipper, and Shipper will be responsible for freight charges for return transportation, in addition to any resulting storage charges or other expenses arising out of such rejection. 

13. Reconsignment or Diversion. Shipments re-consigned or diverted while in transit may be subject to additional charges in accordance with Carrier’s rates. 

14. Stop-Offs. Stop-off charges may be assessed when Carrier is required to pick up from multiple origins or deliver to multiple destination locations. 

15. Loss and Damage – Salvage. If goods are rejected, including overage, Carrier will have the right to sell or dispose such goods. This also applies to property transported by Carrier which is damaged or alleged to be damaged and is, as a consequence, not delivered or is rejected or refused upon tender to the owner, Consignee, or person entitled to receive such property. In any event, salvage value of the cargo shall be deducted from claims for loss or damage to cargo. 

16. Disposition of Overage. Consignee shall accept overages in fulfillment of its duty to mitigate damages. Overages will be returned to Consignee or Shipper by Carrier upon request in return for payment of Carrier’s applicable freight charges. In the event Shipper, consignor and Consignee decline to accept overages and mitigate damages, Carrier will treat any overage as salvage and after notice will sell same in accordance with the bill of lading contract and the terms herein. Carrier will not be liable for any difference between the sales price of overage and the destination market value where the Shipper and Consignee decline to mitigate damages. 

17. Hazardous Materials. Shipper will comply with all U.S. Department of Transportation requirements governing hazardous materials. Shipper must provide a legible bill of lading and Shipper’s certificate with proper Hazmat information on the Bill of Lading and affix any required placards before the shipment is tendered. Failure to comply with these requirements will relieve Carrier of any and all liability for loss or damage directly or indirectly caused to or by the hazardous materials. Shipper shall be liable for all costs and expense, including but not limited to clean-up, storage, and hourly rates of Carrier staff, for incidents arising from leakage, release, or exposure from hazardous materials. Shipments of hazardous materials will be subject to an additional charge. 

18. Substituted Service. Carrier reserves the right to refer shipments to, and Shipper consents to the use of, Carrier’s affiliated brokerage entity and affiliated motor carrier entity to provide all or part of given movements. Shipper will not hold Carrier liable for the actions of the separate freight brokerage entity nor for the actions of any affiliated or third party motor carrier. In the event of any claim or loss, Shipper must look solely to the independent motor carrier and its insurance providers. Services provided by Carrier’s affiliates are subject to their Terms & Conditions, which are available upon request. 

19. Limitation of Liability of Third Party Service. Carrier will in no event be held liable for any claim, loss, damage, expense, or delay to the goods for any reason whatsoever when such goods are in custody, possession, or control of third parties selected by Carrier to forward, enter and clear, transport, or render other services with respect to the goods. 

20. Sale of Perishable Goods. Perishable goods or live animals to be exported, imported, or which are cleared through customs for which no instructions of disposition are furnished by Shipper may be sold or otherwise disposed of without notice to Shipper, owner or Consignee of the goods, and payment or tender of the net proceeds of any sale after deduction of charges will be equivalent to delivery. In the event that any shipment is refused or remains unclaimed at destination or any trans-shipping point in the course of transit or is returned for any reason Shipper must pay Carrier for all charges and expenses in connection therewith. No provision herein obligates Carrier to forward, enter or clear the goods, or arrange for their disposal. 

21. Shipper’s Duty to Furnish Information. a. On an import, at a reasonable time prior to entry of the goods to U.S. Customs, Shipper shall furnish to Carrier invoices in proper form together with other documents necessary or useful in the preparation of the U.S. Customs entry, and such further information as may be sufficient to establish the dutiable value, classification and admissibility of the goods pursuant to U.S. law, or regulation or ruling. If Shipper fails to timely furnish all of such information or documents, as may be required to complete U.S. Customs entry, delays may occur. Where a bond is required by U.S. Customs to be given for the production of any document or the performance of any act, Shipper shall be deemed bound by the terms of the bond notwithstanding the fact that the bond has been executed by Carrier as Principal, it being understood that Carrier entered into such undertaking at the request and on behalf of Shipper and Shipper shall INDEMNIFY AND DEFEND CARRIER FOR THE CONSEQUENCES OF ANY BREACH OF THE TERMS OF THE BOND. 

b. On an export, at a reasonable time prior to the exportation of the shipment, Shipper shall furnish to Carrier the commercial invoice in proper form and number, a proper consular declaration, weights, measures, values and other information in the language of and as may be required by the laws and regulations of the U.S. and the country of destination of the goods. 

c. On an export or import, Carrier will not in any way be liable for increased duty, penalty, fine, or expense unless caused by the gross negligence or other fault of Carrier, in which event its liability to Shipper will be limited in accordance with, and as further described in Carrier’s Terms and Conditions in effect on the date of service. Shipper shall be bound by and warrant the accuracy of all invoices, documents and information furnished to Carrier by Shipper or its agent for export, entry or other purposes and shipper agrees to INDEMNIFY AND DEFEND CARRIER AGAINST ANY INCREASED DUTY, PENALTY, LIQUIDATED DAMAGE, FINE OR EXPENSE, INCLUDING ATTORNEY’S FEES, RESULTING FROM ANY ACT, INACCURACY OR OMISSION OR ANY FAILURE TO MAKE TIMELY PRESENTATION, EVEN IF NOT DUE TO ANY NEGLIGENCE OR FAULT OF SHIPPER. 

d. The following notice is required to be given pursuant to 19 CFR part 111.29(b)(1): If you are the importer of record, payment to the broker will not relieve you of liability for Customs charges (duties, taxes, or other debts owed Customs) in the event the charges are not paid by the broker. Therefore, if you pay by check, Customs charges may be paid with a separate check payable to “U.S. Customs Service” which shall be delivered to Customs by the broker. 

All customs penalties, storage charges, or related expenses incurred as a result of an action by a governmental agency, or failure by the Shipper, Consignee or consignor to provide proper documentation or to obtain a required license or permit will be borne by Shipper and Shipper shall DEFEND AND INDEMNIFY CARRIER FOR SUCH PENALTIES, STORAGE CHARGES, AND RELATED EXPENSES. 

 

    1. C. Limitation of Liability 

1. Limitation of Liability per Shipment. Carrier’s rates are based on a limited liability for loss or damage to cargo. All shipments are released to a maximum value and maximum liability of [$100,000] per shipment subject to Carrier’s insurance coverage including any applicable exclusions. In no event shall liability be greater than the actual value of lost or damaged articles less salvage. In the event Carrier’s insurance denies a claim for any reason, Carrier’s liability shall be limited to $10,000 per shipment. 

Carrier’s liability for cargo loss or damage will not exceed [$100,000] per shipment (“Release Value”) unless Shipper requests an increase in legal liability by a.) Submitting a written request for a higher Release Value, b.) Paying an additional charge based on the increased Release Value, and c.) Obtaining written confirmation of the higher Release Value from an Officer of Carrier. DRIVERS ARE NOT AUTHORIZED TO AGREE TO HIGHER RELEASED VALUE. Carrier will not be liable for loss, damage, or delay caused by (1) an act or default of the Shipper, owner or Consignee; (2) any act of any third party motor carrier; (3) any act of any affiliated or unaffiliated freight broker, and/or (4) any inherent vice or natural shrinkage of the goods. 

2. Inadvertence Clause. If a Shipper declares or fails to declare a value exceeding [$100,000] per truckload, without obtaining written approval from Carrier, the shipment will not be accepted, but if the shipment is inadvertently accepted, it will be considered as being released to a maximum value of [$100,000] per shipment, and the shipment will move subject to such limitation of liability. 

3. No Liability for Special or Consequential Damages. CARRIER WILL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS, OR BUSINESS OPPORTUNITY, ATTORNEY FEES OR PUNITIVE AND EXEMPLARY DAMAGES) INCURRED OR SUFFERED BY THE SHIPPER AS A RESULT OF SHORTAGE, DAMAGE OR DELAY, EVEN IF CARRIER IS NOTIFIED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. CARRIER WILL NOT BE LIABLE FOR PENALTIES OR CHARGES CLAIMED BY SHIPPER, SHIPPER’S CUSTOMER, OTHER PARTIES SHIPPER HAS CONTRACTED WITH, OR THIRD PARTIES. 

4. Liability of Carrier. CARRIER WILL NOT BE LIABLE FOR LOSS, DAMAGE, OR DELAY CAUSED BY (1) an act or default of the Shipper, owner or Consignee; (2) any act of any third party motor carrier; (3) any act of any affiliated or unaffiliated freight broker; and (4) freezing or spoiling of any perishable goods or property or for natural shrinkage. 

5. Concealed Damage. CARRIER IS NOT RESPONSIBLE FOR HIDDEN OR CONCEALED DAMAGE. 

6. Commodity Limitations. Carrier does not hold out to transport copper, money, jewelry, manufactured tobacco products, ammunition, objects d’art, currency, documents, items of unusual value, or rare metals. 

7. Reasonable Dispatch. Notwithstanding the fact that an estimated delivery date may be provided or that a specific delivery date and time may be requested, Carrier is not bound to transport a shipment by a particular schedule or in time for a particular market, but is responsible to transport a shipment with reasonable dispatch. 

8. Force Majeure. Carrier will not be liable for failure to perform any obligation resulting from circumstances beyond its control, including but not limited to any mechanical breakdown, act of God, riot, war, terrorist act, civil disturbance, fire, explosion, flood, strike, lock-out, labor disturbance, or any other cause outside of the reasonable control of Carrier. 

9. Liability for Equipment and Cargo after delivery. Shipper shall ensure that any containers, chassis, or other equipment tendered to Shipper, consignor, Consignee or delivery point and remaining at the Shipper’s facility, consignor’s facility, Consignee’s facility, or delivery point after delivery (for unloading or loading) shall be secured and handled in a manner to prevent theft, loss, or other damage. Carrier will not be responsible for stolen, lost, or damaged goods, containers, chassis, or other equipment after such items have been delivered and are not in the physical possession of Carrier; Shipper will be fully liable for theft, loss and damage to all goods, containers, chassis, and other equipment after such items have been delivered. Shipper will reimburse Carrier for any costs Carrier pays or incurs with regard to theft, loss, or other damage to goods, containers, chassis, or other equipment occurring after Carrier delivers the shipment, including, but not limited to property loss or damage and per diem. 

10. No liability for SOLAS. In no event shall Carrier be liable for fines, penalties, costs, expenses or other damages resulting from Shipper’s failure to comply with the terms of SOLAS. 

11. Liability for replacement services and other costs. With respect to any damages arising from delayed or defective transportation of the shipment (other than liability for loss or damage to cargo, which is set forth herein) including, but not limited to, the cost of replacement services, Carrier’s liability shall be limited to Carrier’s freight charges for the shipment at issue. 

12. Cargo Drop Liability. Shipper shall ensure that any cargo, containers, chassis, or other equipment tendered to Shipper or the delivery point and remaining at the Shipper’s facilities or the delivery point after delivery (for unloading or loading) shall be secured and handled in a manner to prevent theft, loss, or other damage. Carrier will not be responsible for stolen, lost, or damaged cargo, containers, chassis, or other equipment after such items have been delivered and are not in the physical possession of Carrier; Shipper will be fully liable for theft, loss and damage to all cargo, containers, chassis, and other equipment after such items have been delivered. Shipper will reimburse Carrier for any costs Carrier pays or incurs with regard to theft, loss, or other damage to cargo, containers, chassis, or other equipment occurring after Carrier delivers the shipment, including, but not limited to property loss or damage and per diem. 

 

    1. D. Additional Terms 

1. Cargo Claims. Claims for loss, damage, or delay to cargo shall be filed according to 49 C.F.R. § 370 and Carrier’s Bill of Lading. All cargo claims filed with Carrier are waived if not filed in writing within 9 months from the date of delivery or a reasonable time at which delivery should have been accomplished. Written notice of any patent damage to cargo shall be provided to Carrier immediately, and not later than 3 days after delivery. Written notice of latent damage shall be provided to Carrier upon discovery, and, in any event, not later than 15 days after delivery. All cargo claims are waived if a civil suit is not filed within 2 years from the date the Carrier gives a person written notice that Carrier has denied any part of the claim specified in the notice. All other claims must be brought within 2 years from the date the claim accrues. ALL CLAIMS FOR WHICH PROPER AND TIMELY NOTICE IS NOT GIVEN ARE DEEMED AUTOMATICALLY WAIVED. 

2. Disposition of Contested Cargo Claims. Unless the parties agree to voluntary alternative dispute resolution, disputed claims will be subject to 49 U.S.C. §14706 (the Carmack Amendment) subject to any applicable released evaluation. Claimant waives any right to set-off or offset of contested and unliquidated cargo claims against freight charges otherwise due to Carrier as a precondition of service. Claimants agree to forfeiture of any contested claim asserted by it as a set-off after notice and demand for freight charges. 

3. No Responsibility for Governmental Requirements. It is Shipper’s responsibility to know and comply with all the classification, valuation, marking and other Custom’s requirements, laws, regulations and ruling enforced by the U.S. and any country having jurisdiction over a shipment, the laws and regulations of any applicable governmental agency, including but not limited to the U.S. Food and Drug Administration, and all other requirements, laws and regulations of any applicable country or governmental agency. Carrier will not be responsible for action taken or fines, liquidated damages or penalties assessed by any governmental agency against the shipment because of the failure of Shipper to comply with any such laws, rulings, requirements or regulations of any country or governmental agency or with notification issued to Shipper by any such agency. 

4. Advancing Charges. Carrier may advance for collection from Shipper, owner, or Consignee any lawful charges that may be associated with the transportation of the freight. Charges paid by Carrier will be billed to the Shipper or Consignee at actual cost plus a handling fee. 

5. Payment of Charges and Collection. Payment will be due within 30 days of invoice. If charges are to be paid by a third party other than the Shipper or Consignee and such third party fails to pay the charges within 30 days of invoice, the Shipper and Consignee shall be liable for the charges. Nonrecourse provisions, prepaid designations, collect designations, and related terms on bills of lading shall not be given effect; Carrier shall be entitled, at all times, to seek payment from the Shipper, Consignee, and customer. Amounts not received within 30 days of invoice date are subject to 1.5% interest per month or the maximum amount allowed by law, whichever is less, beginning on the 31st day after payment was due. In the event Carrier finds it necessary to retain the services of legal counsel to collect any outstanding indebtedness, Shipper or Consignee shall pay all attorney fees, collection service fees, court filing fees and related expenses to collect such outstanding debt. 

6. Payment without offset. Shipper, consignor and/or Consignee must pay all freight charges when due without offset for any cause. All claims for loss or damage shall be governed by these terms and conditions and neither Shipper, consignor nor Consignee shall deprive Carrier of proper cargo insurance adjustment by unilateral deduction of claims from payment of freight charges due. In the event that Shipper or its agents “short pay” freight charges or deduct charges from freight bills without Carrier’s authorization to do so in writing, prior to the deduction, Shipper and its agents waive their right to any contested cargo claim that is set-off against freight charges. 

7. Third Party Billing & Freight Charge Liability. Carrier does not employ property brokers or other intermediaries as its agents for the collection of freight charges. A shipment in which charges are to be paid by a party other than the Shipper, consignor or Consignee will be accepted provided recourse to the Shipper, consignor, and consignee is preserved, regardless of any other representation on the Bill of Lading or other shipping document (including, but not limited to, Section 7 and/or prepaid designations). The Shipper, consignor and Consignee guarantee to pay the charges if the third party fails to do so in the time allotted under the applicable credit regulations. 

8. Mexican Shipments. Carrier assumes no liability for cargo loss, shortage, or damage to shipments while in the United Mexican States (“Mexico”). Shippers are advised that liability for cargo loss in Mexico differs from U.S. law (49 U.S.C. 14706) and the special arrangements with the Mexican carrier participating in any trans-border movement is not the Carrier’s responsibility. Clear bills of lading showing safe and damage-free delivery between the U.S./Mexican borders at the pickup or delivery points in the U.S. will be evidence of Carrier’s proper discharge of its cargo responsibility. In the event it is determined that Carrier is liable for loss, damage or delay occurring in Mexico, Carrier’s maximum liability will be the rate affixed under the laws of Mexico for domestic shipments within that country. 

9. Lien on Goods. Shipper hereby grants Carrier a lien on the goods tendered to Carrier by Shipper or consignor (including proceeds of such goods tendered to the Carrier), which shall survive delivery, to secure payment of all charges owed by Shipper to Carrier, including, but not limited to, freight, demurrage, detention, damages, loss, charges, expenses, collection costs, and any other sums (including costs, customs fees, attorney fees, and other fees for recovery of the sums) chargeable to Carrier or Shipper in connection with such goods or the transportation of such goods, regardless of whether the charges relate to goods that are presently in the possession of Carrier or goods that are not presently in the possession of Carrier, including both prior and subsequent shipments. Carrier shall have the right to sell the goods by public auction or private sale in order to enforce the lien, upon giving the notice required by the Texas UCC then in effect at the time. If on sale of the goods, the proceeds are insufficient to cover the amount owed, Carrier shall be entitled to recover the balance from Shipper. Shipper agrees that any sale by Carrier shall be commercially reasonable, and Shipper waives all claims that a sale of goods is not commercially reasonable. Shipper further agrees to execute any other document necessary for Carrier to perfect its lien. 

III. REPAIR SERVICES TERMS & CONDITIONS 

FlexiPlus Services, LLC 

Customer is subject to these Terms & Conditions as a condition precedent to receipt of goods and services performed related to flexitanks. Customer agrees to the terms herein for any and all repair, maintenance, shop and storage related services provided by FlexiPlus Services, LLC (“FlexiPlus”) or its affiliates: 

 

    1. A. Repair Work 

1. CUSTOMER HEREBY WAIVES, RELEASES, AND DISCHARGES ANY AND ALL CLAIMS FOR DAMAGES FOR PERSONAL INJURY, LOSS OF USE, AND ANY INCIDENTAL OR CONSEQUENTIAL DAMAGE, LOSS OF USE, DOWNTIME, OR RELATED CLAIMS WHICH CUSTOMER MAY HAVE OR WHICH HEREAFTER MAY ACCRUE TO CUSTOMER AGAINST FLEXIPLUS, FLEXIPLUS’ AFFILIATES, AND THEIR OFFICERS, EMPLOYEES, AND AGENTS (“FLEXIPLUS PARTIES”), RESULTING FROM ANY REPAIRS OR OTHER WORK PERFORMED ON CUSTOMER’S GOODS OR STORAGE OF GOODS, OR CUSTOMER’S ACCESS TO FLEXIPLUS’ PREMISES. THIS RELEASE IS INTENDED TO DISCHARGE FLEXIPLUS PARTIES FROM AND AGAINST LIABILITY ARISING OUT OF OR CONNECTED WITH ANY WORK DONE HEREUNDER, REGARDLESS OF FAULT. THIS RELEASE INCLUDES SITUATIONS WHERE THE FLEXIPLUS PARTIES ARE SOLELY NEGLIGENT OR AT FAULT AND SHALL INCLUDE SITUATIONS WHERE THE FLEXIPLUS PARTIES ARE CONCURRENTLY NEGLIGENT OR AT FAULT WITH CUSTOMER AND/OR THIRD PARTIES. 

2. The following Limited Warranty applies to all maintenance, repair, and related services provided by FlexiPlus: The parts installed and/or repair performed hereunder are warranted for 30 days after delivery of the equipment against defects in materials and workmanship, and will be replaced or repaired if they prove defective within that period. FLEXIPLUS MAKES THE FOREGOING NONASSIGNABLE WARRANTY EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE DISCLAIMED. CUSTOMER AND FLEXIPLUS AGREE THAT FLEXIPLUS’ EXCLUSIVE LIABILITY UNDER THIS WARRANTY OR OTHERWISE SHALL BE THE REPAIR, REPLACEMENT, OR REFUND OF PURCHASE PRICE, AT FLEXIPLUS’ OPTION, OF ANY DEFECTIVE WORK DONE HEREUNDER. USED PARTS AND PARTS OR ACCESSORIES PROVIDED BY CUSTOMER ARE “AS IS,” WITHOUT WARRANTY OF ANY KIND. NO WARRANTIES OR REPRESENTATIONS OTHER THAN THE WARRANTY CONTAINED IN THIS SECTION SHALL BE BINDING. 

3. As to any sum due hereunder which is not paid in cash when the goods are picked up, FlexiPlus is hereby granted a security interest in the goods to secure payment thereof, and shall have the rights of a secured party under the common law and Uniform Commercial Code. Acceptance of Customer’s check shall not constitute payment in cash under this provision. 

4. Payment is due upon completion of all work performed. If Customer fails to make payment upon completion of work performed, FlexiPlus has the option, at its election, to hold Customer’s equipment until such time as payment is made. FlexiPlus’ election to hold equipment shall not exclude FlexiPlus from exercising any other rights, remedies or forms of collection available under law. The amounts charged to Customer for services hereunder may include an administrative fee or mark-up over and above the actual cost or expense incurred by FlexiPlus. 

B. Storage Charges

1. FlexiPlus shall invoice Customer according to the Rate Confirmation or as otherwise quoted by FlexiPlus or agreed in writing. Additionally, any rates, which may be verbally agreed upon, shall be deemed confirmed in writing where FlexiPlus has billed the rate and Customer has paid it. All written confirmations of rates, including confirmations by billing and payment, shall be incorporated herein by this reference. 

2. Customer shall pay FlexiPlus storage charges and the charges for any additional services within 30 days of the invoice date without deduction or setoff. 

3. Storage charges do not include bonded storage. An additional charge may apply if FlexiPlus agrees to store any goods in bond. If a warehouse receipt covers goods in U.S. Customs bond, such receipt shall be void upon the termination of the storage period fixed by law. 

4. Customer may not offset claims for loss or damage to goods against amount owed to FlexiPlus unless otherwise agreed to in writing. 



5. FlexiPlus reserves the right to adjust rates for warehousing, storage and affiliated services in its discretion, with 30 days’ advance notice. 



6. Should Customer stop doing business or reduce its business with FlexiPlus below levels agreed upon between the parties, Customer shall be liable for all unrecoverable contractually obligated charges for the agreed upon term. 



7. FlexiPlus may submit invoices through its Affiliate and such administrative functions shall not alter the services outlined in this Agreement, make FlexiPlus liable for its Affiliates’ conduct, or establish any kind of joint liability between FlexiPlus and its Affiliates. 

D. Release

1. No goods shall be released or transferred except upon receipt by FlexiPlus of complete written instructions. However, when no negotiable receipt is outstanding, goods may be released upon instruction by telephone, but FlexiPlus shall not be responsible for loss or error occasioned thereby. 

2. Customer shall afford FlexiPlus a reasonable time to release goods and shall afford FlexiPlus at least 10 business days after receipt of a delivery order to locate any misplaced goods. If FlexiPlus has exercised reasonable care and is unable, due to causes beyond its control, to release goods before expiration of the current storage period, the goods will be subject to storage charges for each succeeding storage period. If FlexiPlus is unable to release goods because of acts of God, flood, war, public enemies, seizure under legal process, strikes, lockouts, riots and civil commotions, other force majeure causes, or any reason beyond FlexiPlus’ control, or because of loss or destruction of goods for which FlexiPlus is not liable, or because of any other excuse provided by law, FlexiPlus shall not be liable for failure to release the goods and the goods remaining in storage will continue to be subject to regular storage charges.

3. All instructions and requests for release or transfer of title are received subject to satisfaction of all charges, liens and security interests of FlexiPlus with respect to the goods whether for accrued charges, advances, or otherwise. 

4. FlexiPlus may require, as a condition precedent to release, a statement from Customer holding FlexiPlus harmless from claims of others asserting a superior right to Customer to possession of the goods. Nothing herein shall prevent FlexiPlus from exercising any other remedy available to it under the law to resolve conflicting claims to possession of the goods. All costs, including attorney’s fees, incurred by FlexiPlus relating to FlexiPlus’ activities referred to in this subsection may be charged to Customer and shall be subE. Termination of Storage 

FlexiPlus may at any time require the removal of any goods by the end of the next succeeding calendar month by providing written notice to Customer. If goods are not removed before the end of the next succeeding calendar month, FlexiPlus may dispose of the goods in accordance with applicable law. 

F. Handling of Goods 

1. FlexiPlus shall provide the ordinary labor involved in receiving goods at the warehouse yard, placing goods in storage, and releasing the goods to the yard exit for delivery. Customer shall pay FlexiPlus for services requested other than ordinary handling and storage as agreed to in writing by FlexiPlus or at the billed rate. 

2. Customer shall pay FlexiPlus for FlexiPlus’ additional expenses in receiving and returning damaged goods and loading or unloading goods at a place other than the warehouse yard. 

3. FlexiPlus shall store goods outside, which will be uncovered and subject to exposure to weather elements. 

4. Customer may be subject to an escort fee if Customer’s access to FlexiPlus’ premises requires that FlexiPlus personnel escort Customer. 

5. CUSTOMER SHALL NOT USE FLEXIPLUS’ EQUIPMENT (INCLUDING, BUT NOT LIMITED TO, LOADING, UNLOADING, HANDLING, CRATING, PACKAGING, AND CONSTRUCTION EQUIPMENT) WITHOUT WRITTEN PERMISSION FROM FLEXIPLUS. IF FLEXIPLUS ALLOWS CUSTOMER TO USE ANY OF FLEXIPLUS’S EQUIPMENT FOR ANY REASON, CUSTOMER ACKNOWLEDGES THAT CUSTOMER ACCEPTS ALL RISK AND RESPONSIBILITY OF DAMAGE TO PROPERTY AND INJURY AND/OR DEATH TO ANY PERSON(S) ARISING FROM SUCH USE. CUSTOMER SHALL ENSURE THAT ANY PERSON USING FLEXIPLUS’ EQUIPMENT IS QUALIFIED AND CERTIFIED IN ACCORDANCE WITH OSHA REQUIREMENTS AND ALL APPLICABLE STATUTES AND REGULATIONS TO OPERATE THE EQUIPMENT IN THE CONDITIONS PRESENTED. CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS FLEXIPLUS FROM ANY CLAIM ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSE ARISING FROM CUSTOMER’S USE OF FLEXIPLUS’S EQUIPMENT, EVEN IF SUCH CLAIM, ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSES (INCLUDING WITHOUT LIMITATION, ALL COSTS, EXPENSES AND ATTORNEYS’ FEES), IS CAUSED IN WHOLE OR IN PART BY A PRE-EXISTING DEFECT IN SAID EQUIPMENT. 

6. FlexiPlus shall not be liable for damages to Customer’s and Customer’s contractors’ loading, unloading, packaging and related equipment and materials or damages to person or property arising from use of such equipment and materials, except to the extent of FlexiPlus’ proportionate fault. CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS FLEXIPLUS FROM ANY CLAIM ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSE ARISING FROM SUCH EQUIPMENT OR MATERIALS OR THE USE THEREOF, EXCEPT TO THE EXTENT OF FLEXIPLUS’ PROPORTIONATE FAULT. 

7. Notwithstanding anything in this Agreement to the contrary, FlexiPlus is not responsible nor have any role in the securement of cargo for transportation, nor shall FlexiPlus be responsible for the inspection or approval of securement by any motor carrier transporting the cargo from the facility. 

G. FlexiPlus’ Limited Liability 

1. FLEXIPLUS SHALL NOT BE LIABLE FOR ANY LOSS OR INJURY TO GOODS STORED HOWEVER CAUSED UNLESS SUCH LOSS OR INJURY RESULTED FROM THE FAILURE BY FLEXIPLUS TO EXERCISE SUCH CARE IN REGARD TO THEM AS A REASONABLY CAREFUL WAREHOUSE WOULD EXERCISE UNDER LIKE CIRCUMSTANCES AND FLEXIPLUS IS NOT LIABLE FOR DAMAGES WHICH COULD NOT HAVE BEEN AVOIDED BY THE EXERCISE OF SUCH CARE. 

2. FLEXIPLUS SHALL NOT BE LIABLE IN CONTRACT, TORT, OR OTHERWISE FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES IN CONNECTION WITH ITS PERFORMANCE UNDER THESE TERMS, INCLUDING WITHOUT LIMITATION, LOST PROFITS AND LOST OPPORTUNITY, EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE AND EVEN IF FLEXIPLUS WAS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH CLAIM, ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSES IS CAUSED IN WHOLE OR IN PART BY A PRE-EXISTING DEFECT, THE NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT), GROSS NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL FAULT OF FLEXIPLUS (OR ANY SUCH INDEMNITEE). 

3. IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION TO GOODS FOR WHICH FLEXIPLUS IS LEGALLY LIABLE, CUSTOMER AGREES THAT FLEXIPLUS’S MAXIMUM LIABILITY SHALL NOT EXCEED $2.50 PER POUND UP TO $100,000.00 (“RELEASE RATE”). CUSTOMER MAY, HOWEVER, REQUEST AN INCREASE TO THE MAXIMUM LIABILITY OF FLEXIPLUS BY: A.) SUBMITTING A WRITTEN REQUEST FOR A HIGHER MAXIMUM LIABILITY BEFORE THE GOODS ARE TENDERED TO FLEXIPLUS, B.) PAYING AN ADDITIONAL CHARGE BASED ON THE INCREASED MAXIMUM LIABILITY, AND C.) OBTAINING WRITTEN CONFIRMATION OF THE HIGHER MAXIMUM LIABILITY FROM AN OFFICER OF FLEXIPLUS. THIS MAXIMUM LIABILITY APPLIES TO THE AGGREGATE OF ALL OF CUSTOMER’S GOODS STORED BY FLEXIPLUS AT ANY GIVEN TIME. 

4. UNDER NO CIRCUMSTANCES SHALL FLEXIPLUS’S LIABILITY FOR LOSS OR DAMAGE TO GOODS EXCEED THE GREATER OF 1) THE AMOUNT AVAILABLE TO COVER THE LOSS OR DAMAGE UNDER FLEXIPLUS’S INSURANCE, WHICH IS SUBJECT TO THE POLICY CONDITIONS, THEN EXISTING COVERAGE LIMITS, AND AMOUNT REMAINING UNDER THE POLICY FOR COVERAGE, OR 2) $500 FOR ALL OF CUSTOMER’S GOODS IN THE POSSESSION OF FLEXIPLUS; UNLESS CUSTOMER 1) SUBMITS A WRITTEN REQUEST FOR FLEXIPLUS TO BE LIABLE IN EXCESS OF FLEXIPLUS’ INSURANCE COVERAGE, 2) PAYS AN ADDITIONAL CHARGE, AS APPLICABLE, BASED ON THE INCREASED LIABILITY, AND 3) RECEIVES WRITTEN CONFIRMATION FROM AN OFFICER OF FLEXIPLUS OF ACCEPTANCE OF LIABILITY ABOVE INSURANCE COVERAGE; THIS LIMITATION OF LIABILITY SHALL NOT ALTER OR AFFECT FLEXIPLUS’ RELEASE RATE AND THE PROCEDURES CONTAINED HEREIN TO INCREASE FLEXIPLUS’ RELEASE RATE. THIS MAXIMUM LIABILITY APPLIES TO THE AGGREGATE OF ALL OF CUSTOMER’S GOODS STORED BY FLEXIPLUS AT ANY GIVEN TIME. 

5. FLEXIPLUS’S MAXIMUM LIABILITY REFERRED TO ABOVE SHALL BE CUSTOMER’S EXCLUSIVE REMEDY AGAINST FLEXIPLUS OR ANY OF ITS AFFILIATES, EMPLOYEES, OFFICERS, AGENTS, REPRESENTATIVES AND INSURERS FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF GOODS AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS. CUSTOMER WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW. 

6. WHERE LOSS OR INJURY OCCURS TO STORED GOODS, FOR WHICH FLEXIPLUS IS NOT LIABLE, CUSTOMER SHALL BE RESPONSIBLE FOR THE COST OF REMOVING AND DISPOSING OF SUCH GOODS AND THE COST OF ANY ENVIRONMENTAL CLEAN UP AND SITE REMEDIATION RESULTING FROM THE LOSS OR INJURY TO THE GOODS. 

7. INDEMNIFICATION BY CUSTOMER. CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD FLEXIPLUS, FLEXIPLUS’ AFFILIATES, LIENHOLDER, AND THEIR RESPECTIVE AGENTS HARMLESS FROM: ANY INJURY TO OR DEATH OF ANY PERSON; ANY DAMAGE TO OR LOSS OF PROPERTY; ANY ENVIRONMENTAL DAMAGE INCLUDING SPILLS AND POLLUTION; AND ANY RESULTING OR RELATED CLAIM, ACTION, LOSS, LIABILITY, OR REASONABLE EXPENSE, INCLUDING ATTORNEY’S FEES AND OTHER FEES AND COURT AND OTHER COSTS ARISING FROM CUSTOMER’S ACTS OR OMISSIONS RELATED TO THESE TERMS, EXCEPT TO THE EXTENT OF FLEXIPLUS’S PROPORTIONATE FAULT. THE INDEMNITY CONTAINED IN THIS PARAGRAPH: (A) IS INDEPENDENT OF CUSTOMER’S INSURANCE OBLIGATIONS; AND (B) SHALL APPLY IN INSTANCES WHERE FLEXIPLUS, CUSTOMER, AND/OR THIRD PARTIES ARE AT FAULT (EXCEPT TO THE EXTENT OF FLEXIPLUS’S PROPORTIONATE FAULT). 

8. FLEXIPLUS’ LIEN AND SECURITY INTEREST. Customer grants to FlexiPlus a lien and security interest against: (1) all of Customer’s non-exempt personal property that is in or on the FlexiPlus premises or any other property in FlexiPlus’ possession; (2) all lawful claims for money advanced, interest, insurance, transportation, labor, and other charges and expenses in relation to Customer’s non-exempt personal property and goods in or on the Warehouse; and (3) the balance on any other Customer, or Customer’s affiliates, accounts that may be due. This is a security agreement for the purposes of the Uniform Commercial Code and FlexiPlus may file a financing statement

REVISED & EFFECTIVE JULY 25, 2023 

to perfect FlexiPlus’ security interest under the Uniform Commercial Code. FlexiPlus shall have a lien on the non-exempt personal property and goods of Customer and may refuse to surrender possession until all charges or debts of Customer, or Customer affiliates, are paid in full. In addition to the charges described herein, Customer shall be liable for any and all expenses FlexiPlus incurs to sell or dispose of the goods, including, but not limited to, attorney fees, transportation costs, administrative costs, and expenses necessary for the preservation of the goods. FlexiPlus shall have the right to pay another service provider, whether hired by FlexiPlus or not, for services provided with relation to transportation, handling, warehousing, or related services, including instances where FlexiPlus provides such services, FlexiPlus hires a third party to provide the services, or otherwise. Customer consents to such costs being included in FlexiPlus’ lien and sale of the goods to satisfy such costs. Customer remains responsible for any deficiency outstanding to FlexiPlus. 

Any goods sold pursuant to a claim of a FlexiPlus’ lien shall be deemed to be goods stored for hire by a merchant in the course of its business, and the sale may be accomplished by any means allowed by law for merchants or otherwise. Any sale by FlexiPlus shall be commercially reasonable, and Customer waives all claims that a sale of goods is not commercially reasonable. 

9. FLEXIPLUS’ ACCESS REQUIREMENTS. Customer shall comply with and cause each of Customer’s employees, contractors, and invitees to comply with and execute the FlexiPlus Access Requirements and furnish the executed FlexiPlus Access Requirements to FlexiPlus before Customer’s employees, contractors, or invitees access the premises. CUSTOMER’S FAILURE TO REQUIRE AND CAUSE EACH OF CUSTOMER’S EMPLOYEES, CONTRACTORS, OR INVITEES THAT ENTER FLEXIPLUS’S PROPERTY TO EXECUTE THE FLEXIPLUS ACCESS REQUIREMENTS SHALL NOT CONSTITUTE A WAIVER BY FLEXIPLUS OF THE RIGHTS AND REMEDIES. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS FLEXIPLUS FROM ANY CLAIMS OR DAMAGES INCURRED BY FLEXIPLUS THAT FLEXIPLUS WOULD NOT HAVE OTHERWISE INCURRED HAD CUSTOMER FULFILLED THE TERMS IN THIS SECTION. 

 

    1. H. Notice of Claims 

1. It is a condition precedent to recovery on any claim against FlexiPlus that Customer shall present all claims for loss or damage to goods to FlexiPlus in writing within 91 days after delivery or the expected delivery date of the goods underlying the claims. Customer agrees that any claims for which notice is not provided to FlexiPlus within 91 days are waived. 

2. Customer may only maintain an action by Customer or others against FlexiPlus for loss or damage to goods if said action is commenced within 2 years after delivery or the expected delivery date of the goods underlying the action. 

3. As a condition precedent to making any claim and/or filing any suit, Customer shall provide FlexiPlus a reasonable opportunity to inspect the goods which form the basis of Customer’s claim and/or suit. 

IV. GENERAL TERMS

The following general terms apply to the entirety of all Terms & Conditions. 

1. CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. 

2. NONWAIVER. Failure of either Party to insist upon performance of any of the terms, conditions, or provisions herein or to exercise any right or privilege herein, shall not be construed as thereafter waiving any such terms, conditions, provisions, rights or privileges, but the same shall continue and remain in full force and effect as if no forbearance or waiver had occurred.

3. FORCE MAJEURE. Neither Party shall be liable to the other for failure to perform any of its obligations herein during any time in which such performance is prevented by fire, flood, other natural disaster, war, embargo, riot, civil disobedience, intervention of any government authority, traffic, weather, act of third party, mechanical breakdown, or any other cause outside of the reasonable control of the CUSTOMER or CONTRACTOR, provided that the Party so prevented uses its best efforts to perform and provided further, that such Party provide reasonable notice to the other Party of its inability to perform. 



4. ACCOUNTS. Undisputed charges which remain unpaid in excess of 30 days are subject to finance charge of 1% of the total invoice amount due. In the event a charge is disputed, such dispute must be reasonable and bona fide. 



5. GOVERNING LAW AND JURISDICTION. This Agreement shall be interpreted under the laws of the State of Texas. The Parties agree that any and all disputes under this Agreement shall be exclusively filed in the appropriate state and federal courts located within Harris County, Texas.